Regardless of the assets in a case, an application for divorce and the prospect of trying to reach a financial settlement can be daunting. However, high net worth cases can quickly become more complex. This is largely because of the type of assets...
Getting married or moving in with your partner is an exciting time and it might seem unromantic to think about what would happen if you later separate.
However, with around 2 in 5 marriages ending in divorce and the average relationship lasting less than 3 years, it is sensible to agree a plan with your partner for what will happen to your home, saving and other assets, and any children you have together if your relationships ends.
Described in Legal 500 as "brilliant", our family law team are consulted frequently by our clients - before or after marriage - seeking expert advice in regulating any financial claims they may have with their partner, in the event that they go on to separate in the future.
We provide expertise in preparing bespoke Pre-Nuptial Agreements for those who are marrying and Post-Nuptial Agreements for those already married and also Cohabitation Agreements for couples who are planning on living together.
If you have money or property to protect (often from family inheritance or personal wealth), or businesses which you have invested in or managed, it is possible that your partner could lay claim to these if you separated. You might want to read our blog article on Pre- and Post-Nuptial Agreements and 'the Bank of Mum and Dad'.
Courts in England are now regularly seeing and upholding the intentions behind properly drafted Nuptial Agreements so it is vital that expert legal advice is taken at the earliest possible time. There are specific criteria that must be met to give your Agreement the best chance of being upheld, one of which is having taken expert legal advice.
To secure a team who will fight your corner and represent your interests, make a confidential call or email enquiry to our specialist team.
Understanding the different types of agreements
There are three main types of agreement you can make to protect yourself from possible negative financial consequences, provide certainty for you and your children and avoid unnecessary conflict and expense associated with divorce in the event of your relationship ending.
In each case, both parties must enter into the agreement willingly, have independent legal advice and make a full disclosure of all their assets and any liabilities, such as mortgages and other debts.
Must be entered into before getting married, the further in advance the better but at least three weeks before your wedding day. There are equivalent agreements available for civil partnerships known as pre-civil partnership agreements or pre-registration agreements.
Can be entered into at any point after you get married. You can create a post-nup where you did not have a pre-nup, or where your circumstances have changed (e.g. you have had children), so an existing pre-nup is no longer relevant. Again, there are equivalent agreements available for civil partnerships known as post-civil partnership agreements or post-registration agreements.
Are used where you are living with your partner or intend to live together without getting married or entering a civil partnership. Cohabitation agreements replaced living together agreements, although this term is sometimes still used informally. Such are commonly used when the house in which you will live is only owned by one person or where one of you has made/will make a greater financial contribution than the other.
Common questions about pre-nuptial agreements, post-nuptial agreements and cohabitation agreements
What happens if you don't get a pre-nup?
There is a general legal principle that all marital assets may be divided equally during divorce, so without a pre-nup you risk the possibility of ending up with a financial settlement that you consider unfair.
Having a pre-nuptial agreement can also make getting divorced much simpler and less stressful, as the key details have already been sorted out, and it can make it much less likely that you will end up having to rely on court proceedings.
Should I sign a pre-nup?
If you have been asked to sign a pre-nuptial agreement by your partner, it is essential to have independent legal advice from a family lawyer with specialist expertise in these types of agreements first as the implications could be incredibly serious.
It is a requirement for each of you to have had the opportunity of taken legal advice, if the agreement to have any legal standing and it also gives you the peace of mind that the agreement is fair and will not compromise your long-term interests.
It is important to remember at all times that you are under no obligation to sign a pre-nup and if you feel pressured to do so, this is something you need to discuss with your partner and your legal adviser. Any pre-nup you are pressured into signing could be considered invalid as you must enter into the agreement willingly.
Is it too late to get a pre-nup after marriage?
Technically, yes, but you can get a post-nuptial agreement instead which offers the same protections.
A post-nuptial agreement may be worth considering if your circumstances have changed significantly since you got married e.g. you have had children, bought a home, received a substantial inheritance or started a business.
Post-nuptial agreements are also sometimes used where one spouse has been unfaithful and you have decided to stay together but the other spouse wants a degree of security in case the relationship doesn’t survive long-term.
Are pre-nuptial agreements and post-nuptial agreements enforceable?
Pre-nups and post-nups are not legally binding under current English law, however, they will be taken into consideration by a judge during divorce proceedings as long as the agreement has been prepared correctly. Cohabitation agreements are legally binding, but can still be put aside by a judge if there are flaws in the way the agreement was created.
This is why it is so essential to have expert legal advice before entering into an agreement, to make sure all of the right steps have been taken so you can be confident the agreement will stand up if you ever need to rely on it.
What are the rights of a common law spouse?
Many people believe unmarried partners have rights under the principle of ‘common law marriage’ if they have lived together for long enough. This is a myth. Unmarried couples have no automatic legal rights with regard to each other’s property, savings or other assets and no automatic right to financial support, other than for child maintenance where appropriate.
This means if you separate from your unmarried partner, you may have no right to a financial settlement or any kind of personal maintenance, unless you have a cohabitation agreement in place that makes provision for this. If you live in a property that is in your ex-partner’s name, you may also have no right to stay there, unless this is specified in a cohabitation agreement.
For this reason, we strongly recommend that anyone living with their partner creates a cohabitation agreement, especially if you are living in a property that is in one person's name, one of you is financially dependent on the other and/or you have children together.
Book your free initial consultation with our friendly, expert family lawyers in Yorkshire
Looking for advice on creating a pre-nuptial agreement, post-nuptial agreement or cohabitation agreement? We offer a free, no obligation consultation for every client, so we can understand your situation and help you find the best legal option for you.
We can arrange meetings at any of our local offices in York and across Yorkshire, so simply contact your nearest Harrowells office in York, St Saviourgate, Clifton Moor, Easingwold, Haxby, Pocklington and Thirsk.