Pre-Marital and Cohabitation Agreements

Although recognised in some countries, Pre-Marital Agreements (or Pre-Nups as they are commonly known!) are not at present binding and enforceable in the UK.  The Government, keen to promote marriage, has historically viewed such Agreements as contrary to public policy, on the basis that they focus on what would happen should the marriage break down. 

According to research, almost half of those questioned in this country would now like to see Pre-Marital Agreements become legally binding.  With the high number of second marriages in the UK nowadays and given the multi-cultural and international community in which we now live, it is likely that there will be an increase in demand in the future for Pre-Marital Agreements to be held as binding.

Pre-Marital Agreements require careful planning, negotiation and advice.  Although the key element in a Pre-Marital Agreement is “fairness” so far as the Courts that have reviewed them are concerned, several common requirements have emerged:

• Pre-Marital Agreements should not normally be made fewer than 21 days before the date of the marriage. 
  
• Both parties to the Agreement should have provided full and frank financial disclosure of their financial positions.  
  
• Both parties should have received independent legal advice as to the implications of the Agreement. 
  
• There should be no duress on either party to enter into the Agreement. 
  
• Any Pre-Marital Agreement should have a built-in provision for regular reviews.

If there is no apparent injustice to either party and no unforeseen circumstances have intervened such that it would make it unfair to hold one party to it, it seems likely that the Court may find favour with the Agreement when a couple divorces. 

If divorcing couples cannot agree upon the terms of their financial settlement on divorce, then the Court will be asked to adjudicate.  At the moment the Court is asked to consider “all the circumstances of the case”.  Pre-Marital Agreements may certainly be treated as one of those circumstances and, although not binding, may be persuasive. 

On the one hand, it may seem somewhat unromantic to enter into a marriage with a Pre-Marital Agreement in place but, for many clients, we find that these Agreements offer a welcome opportunity to discuss practical matters with their partner and prevent disputes as to issues that could potentially arise after the wedding. 

Charges for Pre-Marital Agreements vary according to the complexity and scope of the Agreement required and we would urge any couple considering a Pre-Marital Agreement to seek independent legal advice to determine the scope of the Agreement required in their circumstances and how they could help to avoid future problems arising.