A prenuptial / pre-civil partnership agreement is a contract between a couple who are about to marry or enter into a civil partnership. The agreement will set out which assets each party owns and provides for how assets (whether acquired prior to the marriage / civil partnership or after) are to be divided in the event that the marriage / civil partnership comes to an end. An agreement can also set out provisions for future financial support in the event of a breakup. The contents of an agreement will vary to reflect the couple’s individual needs.

On entering into a marriage or civil partnership, the parties obtain certain legal rights, including a right of occupation in any property which is used as a family home. The marriage / civil partnership also provides each party with the potential to make financial claims against the other in the event of a breakup. These claims are for maintenance, lump sum payments, property adjustment orders and pension provision. Couples enter into a prenuptial / pre-civil partnership agreement to make provision for what they would wish to happen regarding their finances in the event of their relationship breaking down to avoid potentially costly legal disputes regarding these issues in the future. For this reason, such an agreement should be considered as an insurance policy to provide peace of mind and security but should not be entered into lightly.

A prenuptial / pre-civil partnership agreement cannot prevent an application being made to the court in divorce / dissolution proceedings. However, prenuptial / pre-civil partnership agreements are factors that the court can consider in the event of a relationship breakdown when dealing with finances in divorce / dissolution proceedings. There have been several reported cases where English courts have held couples bound by their prenuptial agreement.

The court will give effect to the agreement if it is freely entered into by each party with a full understanding of its implications unless in the particular circumstances of the case it would not be fair to hold the parties to it. There should have been an exchange of financial disclosure / information. The agreement cannot be allowed to prejudice the reasonable requirements of any children.

We would advise that discussions take place as soon as possible if such an agreement is to be considered to allow both parties sufficient time to seek independent legal advice. The agreement should be entered into well in advance of the date of the marriage / civil partnership, and in any event, it should be entered into at least 28 days before the date. The agreement will not be void if it is entered into shortly before the date, but the court may place less reliance on it if it is. These agreements can take a number of months to prepare and agree.

We recommend that agreements are reviewed regularly and at least every five years. It is also important to review such agreements when there are significant changes within the relationship such as the birth of a child, loss of employment, or major change in assets. Following a review, the parties may enter into a postnuptial / post-civil partnership agreement to reflect the changes in circumstances should they choose to do so.

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