Relationship Agreements

Neither prenuptial or postnuptial agreements are legally binding in England and Wales. However, they can be considered persuasive by a Judge if there is a disagreement over property or finances later on.

The prenuptial agreement records the parties intentions when considering the breakdown of the relationship and the division of assets.

In order for a prenuptial agreement to be considered by the court, it must satisfy a number of criteria, including but not limited to:

• Were the parties entering into the agreement by mistake, duress, undue influence or by misrepresentation? The court will consider whether one party put pressure on the other to enter into the agreement.
• Was the agreement considered with enough time? Did the parties negotiate the terms of the prenuptial agreement as far in advance of the wedding date as possible? Did the parties have sufficient time for independent legal advice?
• What was each party’s emotional state at the time of making the agreement? How did their age and maturity and previous experience of long-term relationships affect their decision?
• Did the parties exchange financial disclosure in sufficient time to allow consideration?

The post-nuptial agreement, works in much the same way as the prenuptial agreement, although parties enter into it after the marriage or civil partnership. The court will consider whether the parties understood the agreement, whether it is fair and whether they should depart from the agreement. For example, if the agreement would now prejudice any children in the family.

The longer the marriage after the agreement, the more likely it will be for the court to consider the terms to be weaker. Any changes in circumstances can lead the court away from upholding the agreement – such as the couple having children. Any agreement does not override the court’s authority upon Divorce or Dissolution to redistribute the assets and finances.

A separation agreement is a legal agreement made between individuals who are contemplating separation, or who have already separated. Most couples entering into a separation agreement are married or in a civil partnership. However, cohabiting couples may also wish to enter into a separation agreement.

The agreement usually sets out the terms of financial arrangements during the period of separation. Some agreements also set out how a couple should divide their finances in the event of a subsequent divorce or dissolution.

A separation agreement is usually drafted nearer in time to the breakdown of the relationship. A separation agreement does not end a marriage. If a couple wishes to divorce, one of the parties will need to start divorce proceedings.

A cohabitation agreement is a document which records arrangements between two or more people who have agreed to live together. It records each party’s rights and responsibilities in relation to the property where they live or intend to live together. Also, it records financial arrangements between them, both during and following cohabitation and the arrangements to be made if they decide that they no longer want to live together.

Where two or more cohabitees co-own a property, a cohabitation agreement can avoid the cost of litigation about the parties’ respective beneficial interests in the home that they shared when cohabitation ended.

A cohabitation agreement can also be used to record ownership of personal property. This can include items such as cars, furniture or art which may be used or enjoyed by both cohabitees when they live together. However, they are to be retained by the owner if cohabitation ends.

As with the other agreements, a cohabitation agreement is not legally binding. Nevertheless, in any dispute, the agreement will be evidence of the parties intentions at the time the agreement was created.