Nuptial + cohabitation agreements
Pre-nuptial agreements (or ‘pre-nups’)
A pre-nuptial agreement or “pre-nup” is a written agreement which details the provision of assets between the couple and what would be the split in the event of a separation or divorce.
Considering entering into a pre-nup is not the most romantic of exercises but can be very useful, especially in circumstances where the parties are bringing substantial assets to the marriage; and it can also reduce the risk of convoluted and costly legal proceedings if the marriage were to end in divorce.
The agreement needs to be signed at least 21 days before the date of the marriage.
Whilst a pre-nup is not legally binding the courts are likely to uphold the agreement if it meets certain criteria (for example, that it was entered into freely by both parties; both had a full understanding of the agreement; and both had independent legal advice) unless the circumstances surrounding the divorce would deem it unfair.
Many couples decide to cohabit rather than the more formal route of marriage. There is a very common belief that there is a principle of “Common law marriage”. This is a myth and no such principle exists, on the contrary, unmarried couples do not have the same protection as married couples.
If you are thinking about moving in with your partner and / or purchasing a house together, you should take legal advice to ensure your rights are protected.
If you purchase your property with your partner there are two ways you can own the property and it is important that you understand the difference as the type of ownership affects what you can do with the property if your relationship with a joint owner breaks down or if one owner dies.
If you own as joint tenants you share equal ownership of the property and have the equal undivided right to keep or dispose of the property. In effect you own as one owner and, on the death of one of the owners, the property automatically falls to the surviving owner. This is known as the “right of survivorship”, and the crucial point to note is that you cannot pass on your ownership of the property in your will.
Tenants in Common
As tenants in common you can express in what shares you each own the property, this may be equal or otherwise. As you own in separate shares, you are able to leave your specific share in your will, and your share, therefore, does not have to pass to the surviving owner.
If you own as tenants in common it is very important that you have a valid will.
In order to be clear and protect your interests drawing up a trust deed and a cohabitation agreement is a very sensible solution. Whilst it is not the most romantic exercise when embarking upon a new relationship, it can avoid future costly disputes if the relationship were to break down.
Cohabitation agreements can be, and should be, reviewed regularly to reflect changes in circumstances, for example if you have children.