Pre-Marital and Cohabitation Agreements

Pre-Marital Agreements - commonly known as “Pre-Nups” - are not currently binding and enforceable in the UK, but are growing in popularity and support.  They are however given careful consideration by the Courts and the existence of a Pre-Nup in certain high value cases has recently proved to have significant influence.

What do Pre-Marital Agreements involve?

Pre-Marital Agreements require careful planning, negotiation and advice.  Although the key element in a Pre-Marital Agreement is “fairness”, several common requirements have emerged from test cases so far:

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

How will the Court view a Pre-Marital Agreement?

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 the Court may accommodate the Agreement when the couple divorces. 

Where divorcing couples cannot agree financial settlement terms, the Court is asked to adjudicate.  The Court will consider “all the circumstances of the case”. Pre-Marital Agreements may certainly be treated as one of these circumstances and may be persuasive. 

Why Pre-Marital Agreements make sense to many clients

Many clients find these Agreements offer a welcome opportunity to discuss practical matters with their partner and to prevent disputes arising after the wedding – even if it can sound unromantic at the time!

What do Pre-Marital Agreements cost?

Charges vary according to the complexity and scope of the Agreement required. We urge any couple considering a Pre-Marital Agreement to seek independent legal advice to:

• Determine the basis of the Agreement they require
• Identify how the Agreement could help to avoid future problems

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