Prenuptial Agreement for a Couple

Blogs - Family Law

A prenuptial agreement, also known as a premarital agreement, is a written contract that a couple enters into before marriage.

It outlines how the couple’s assets will be divided if they divorce.

Premarital agreements can also help couples control and select many of the legal rights they gain when they marry.

In England and Wales, premarital agreements are not legally binding, but they can be persuasive and are likely to be upheld depending on the case providing the courts are satisfied that both parties freely entered into the agreement with full understanding of the implications.

In the UK, premarital agreements can help couples protect assets such as:

  • Pre-owned assets
  • Expected inheritance
  • Trust funds
  • Assets left to children from a previous marriage
  • Their partner’s debt.

Premarital agreements can also help make the divorce process more efficient by avoiding lengthy court battles and legal disputes. This can save time and money and make the divorce process less stressful for everyone involved.

When considering a premarital agreement, you can consider things like:

  • What would happen to money in joint accounts and jointly purchased property? 
  • What would happen to savings earned during the marriage? 
  • What would happen to pensions? 
  • How would debts be dealt with? 
  • Would either party pay or receive maintenance, and if so, for how long? 
  • What events might require the agreement to be reviewed? 
  • What arrangements would be made for any children, both financially and practically? 

To be legally enforceable, a premarital agreement must be contractually valid.  This means that there must be no factors that cast doubt on the free will of either party or the level of information they had when entering the contract.  Evidence of mistake, misrepresentation, duress, or undue influence may cause the agreement to fail.  As regards the level of information couples are advised to give full disclosure of their assets to each other before entering the agreement.

Where full financial disclosure has been given, the courts are more likely to uphold the arrangements set out in a prenuptial agreement in subsequent financial proceedings ancillary to divorce, although it should be emphasised that the couple cannot ‘contract out’ of the courts power to review the financial arrangements and step in following a divorce if one of the party’s needs are not being met.

As a preliminary to setting up a prenuptial agreement, we would invite a couple to:

  • prepare schedules of assets and liabilities.
  • consider what protections you wish to put in place as regards pre-marriage solely owned assets e.g. savings, property, pensions, inheritance, Trusts, stocks and shares etc.
  • consider what you want to happen as regards assets acquired during your marriage either jointly or in your sole names.
  • what is to happen as regards debts?
  • provision for children
  • any other matters particular to your circumstances

If you have any questions regarding prenuption agreement, please contact our family law solicitors at 020 8240 9018 or dorothy@jypartnerssolicitors.com.

Child Arrangements

Blogs - Family Law

Making child arrangements

You can choose how to make arrangements for looking after your children if you separate from your partner.

You and your ex-partner can usually avoid going to court hearings if you agree on:

  • where the children will live
  • how much time they will spend with each parent
  • how you will financially support your children

You can use a legal advisor if you want to make your agreement legally binding.

You can agree on child maintenance at the same time or separately.

Parenting Plan

You can make a Parenting Plan either direct with your ex-partner with or without the help of a legal advisor or you can use a mediator. The Parenting Plan is a written plan worked out between parents after they separate, and it covers the practical issues of parenting.

The Plan can help clarify the arrangements you need to put in place to care for your children after separation, without having to go to court. It can help you in dealings with your children’s other parent or carer, and it asks parents to put the best interests of their children first. There are many benefits of making a Parenting Plan:

  • it will help everyone involved know what is expected of them
  • it acts as a valuable reference to go back to
  • it sets out practical decisions about the children, such as living arrangements, education, and health care.

If you do go to court in the future, it is likely that judges will expect you to have started a Parenting Plan.

https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parenting-together/parenting-plan/

If you cannot agree on everything

You can ask a court to decide anything you cannot agree after mediation or getting other help. You must show you have attended a meeting to see if mediation is right for you before applying to a court. You will not have to in certain cases, for example, if there has been domestic abuse or social services are involved. You will not usually get legal aid to help with court costs unless you are separating from an abusive partner.

Contact our Family Law Solicitors

If you would like to discuss your family situation with our family law solicitors, please get in touch with us on 020 8240 9018 or submit our enquiry form on our website.

Matrimonial Property Regime

Blogs - Family Law

What is a matrimonial property regime?

Different countries and cultures have different ideas about marriage and how significantly it should affect asset ownership. Each country (and in federal countries such as the USA, each state) has very specific rules which should be considered carefully in each case. Some countries, such as Germany, France and Italy, allow each couple to choose what regime will apply to them.

Broadly speaking, there are four categories of regime:

1. Separation of property

In jurisdictions with a separation of property regime, all property acquired before and during the marriage is each spouse’s own separate property, and each person in theory has full freedom of disposition, both in their lifetime and on death.

This is the regime that applies in England and many other “common law” countries such as Australia, New Zealand, India and 41 of the 50 states in the USA.

2. Full community of property

Where there is full community of property, all assets acquired before and during a marriage will be treated as held jointly by the spouses, and this may include property inherited by one of them.

Full community of property is rarely imposed as a default but is offered as an option in countries such as France where a couple can elect that full community of property will apply to their assets after marriage.

3. Deferred community of property

Deferred community of property is only relevant when a marriage ends. Every asset is treated as separately owned during the marriage, but a spouse acquires joint ownership rights in their partner’s property on death or divorce.

This is the default regime in Scandinavian countries and some Central American countries like Costa Rica. Germany has a similar regime known as “the community of surplus” where, on death or divorce, the gains / increases in value in each spouse’s assets are calculated and then divided on an equal basis.

4. Community of acquisitions

Assets which are acquired by either spouse during the marriage are treated as jointly owned, but assets acquired prior to the marriage or inherited at any time are separately owned.

This is the default regime in France, Russia, China, Spain (apart from in Catalonia and the Balearic Islands, which have separation of property), and many countries in South America (for example, Argentina, Brazil and Colombia).

What if there are ties to more than one country?

Conflict of laws issues inevitably arise where couples have ties to more than one country, and in-depth consideration must be given to which laws apply. However, a series of international agreements are in place to help.

For marriages celebrated between 1 September 1992 and 28 January 2019, the Hague Convention of 14 March 1978 applied in certain EU member states (for example France, the Netherlands and Luxembourg) and determined that where spouses move to a new jurisdiction after their marriage, the rules of that jurisdiction will replace those of the former regime.

The Matrimonial Property Regulation (Regulation 2016/1103) was introduced in June 2016 as an attempt to simplify matrimonial property regimes in the European Union. The Regulation mainly concerns divorce and family matters and applies to marriages that took place on or after 29 January 2019 in 18 of the 28 member states of the EU. The Regulation applies new solutions to conflict of laws on, for example, jurisdiction, applicable law and the recognition and enforcement of decisions. It sets out a series of tests to help couples determine which regime applies to them.

The EU Succession Regulation (Regulation 650/2012, also known as Brussels IV) applies similar solutions to the assets of a person’s deceased spouse.

Contact our Famly Law Solicitors

If you have any enquiries in relation to the family law such as divorce, finance and children, please contact our family law experts on 020 8240 9018 or complete our enquiry form on our website.

Cohabitation Agreement

Blogs - Family Law

Cohabitation Agreement

A cohabitation agreement is a legal document between unmarried couples who live together. It sets out arrangements for property, finances, and children and what will happen if you split up, become ill or die. Cohabitation agreements can also be made between friends or relatives.

Couples who are not married do not have automatic rights like married people, even if they have lived together for a long time or have children. A cohabitation agreement can make sure you have a share of each other’s assets, access to each other’s state pension and next of kin rights in a medical emergency. It can also help you to divide up bills and other responsibilities while you are living together.

Things that can be covered in a cohabitation agreement include:

  • who owns what and in what proportion
  • what share of the mortgage or rent each of you will pay
  • how household bills will be dealt with
  • bank accounts and money
  • life insurance
  • pensions
  • personal possessions such as cars, furniture, and jewellery
  • payment of debts
  • pets
  • next of kin rights
  • pension access
  • property title deeds
  • wills can also be considered e.g. mutual wills or mirror wills

Many couples are under the assumption that if they are living together the law protects them in the same way as married couples. However, couples who live together do not have the same legal rights as married couples or those in a civil partnership. A cohabitation agreement provides peace of mind by setting out what arrangements you agree are going to be legally binding.

Contact our Family Law Solicitors

If you have any enquiries in relation to a cohabitation agreement, please contact our family law solicitors on 020 8240 9018 or via the enquiry form on our website.

Pre-nuptial & Post-nuptial Agreement

Blogs - Family Law

Pre-nuptial Agreement

A prenuptial agreement is a contract entered into between two people before they marry. It records the ownership of assets and details what will happen to these assets should the marriage break down and end in divorce i.e. it sets out “who gets what”.

There are a number of reasons why you might consider signing one before marrying:

  • Once you are married, any assets you formerly owned yourself may become matrimonial assets. If they are treated as matrimonial assets, they are thrown into the marriage ‘pot’, where they may be shared between you and your partner. Should the marriage end in divorce, both partners then have a claim on these assets.
  • Also, a prenuptial agreement allows for each partner to ring-fence certain assets to protect them from this.

Where might you want to get a prenup?

  • There is an existing disparity in wealth between you
  • One of you has an expectation of future wealth
  • There is a business to protect
  • There is an inheritance to protect
  • There is a possibility of international divorce law being applied

What can be included in a prenup?

  • What property each brings in and what will happen to the family home
  • What money, investment, and savings each party is bringing in
  • Protection against the other party’s debts
  • What rights children from a previous marriage have to any property or assets
  • Inheritance assets can be ‘ring-fenced’.

It is very important to note that while prenuptial agreements are legal documents that will be considered by the Courts, when prepared correctly, the Court may, depending on the facts of a particular case, choose to divide your assets in a different way from the prenup. In deciding whether to uphold an agreement, the Court will start from the position that where a couple have entered into a prenup being aware of what they were doing and understanding the financial consequences, they should be held to the terms of their agreement unless the result of doing so would be to place one of them in a position of financial hardship.

The Court will look to see that at the time the pre-nuptial agreement was made the following factors were satisfied 

  • Each of the couple understands the financial resources, income and liabilities involved. This requires each of them to disclose to the other what they own and what their assets are.
  • Neither has been placed under undue pressure to enter into the agreement. This requires that the agreement be prepared in good time before the marriage and that each person has time to consider it (28 days at least).
  • Each of the couple should ideally take independent legal advice.

Financial Hardship

The Court will want to ensure that holding the couple to the agreement will not put either one of them, or more importantly a child, in a position of grave financial hardship. Even if the Court decides that holding the parties to the prenup will cause grave hardship it will not disregard the terms of the prenup altogether. What was agreed will still be taken into account as one of the factors to be considered by the Court, but it will not be the only factor.

Post-nuptial Agreement

If you are already married it is not too late to protect your assets. In a landmark case in divorce law, McLeod v McLeod (2008), the Court ruled that a post-nuptial agreement, signed after the marriage had taken place, could be upheld in the same way as a prenuptial agreement, provided it was prepared so that it met the same criteria for validity as a pre-nuptial agreement.

Contact our Family Law Solicitors

If you have any enquiries in relation to a pre-nuptial or post-nuptial agreement, please contact our family law solicitors on 020 8240 9018 or via the enquiry form on our website.