Everything you need to know about same-sex pre-nuptial agreements
This month sees the 3-year anniversary of same-sex marriages being legalised in the UK. The Marriage (Same Sex Couples) Act 2013 came into force at one minute past midnight on March 29, 2014.
In the 12 months that followed, over 15,000 same sex couples married. According to The Office for National Statistics (ONS), there were 7,366 marriages and a further 7,732 conversions from civil partnerships.
Our perceptions of relationships and marriage are constantly evolving. In addition to the legalisation of same sex marriages, second and third marriages are becoming increasingly common and people are waiting much longer to get married now compared to forty years ago.
Entering into a same sex marriage, or a civil partnership, later in life means you’re more likely to have already accumulated property, savings (& debts!), pensions, mortgages and children.
While it’s too early to have any real idea of what divorce statistics for same sex marriages will look like, it feels safe to say that relationships (in whatever form) are fallible, and planning for all eventualities is therefore sensible.
This is where Pre-Nuptial Agreements (or Pre-Partnership Agreements for civil partnerships) can be invaluable.
Your questions about same sex Pre-Nuptial Agreements answered
1. What is a Pre-Nuptial Agreement?
A Pre-Nuptial Agreement (also referred to as a pre-nup) is an agreement between two partners designed to set out financial arrangements and protect what they bring to the relationship in the event of permanent separation.
2. Are Pre-Nuptial Agreements legally binding in the UK?
Pre-Nuptial Agreements are not yet legally binding in the UK; however they have been given legal weight following precedent set in the 2010 ground-breaking case of Radmacher v. Granatino.
This means that while British courts recognise Pre-Nuptial Agreements and will usually uphold them, they can overrule them. This usually only occurs if it’s deemed to be unfair or not in the best interest of any children of the marriage.
For Pre-Nuptial Agreement to be upheld, the court must be confident that the content is fair, that both parties entered it willingly and that both parties had the opportunity to obtain legal advice (see our checklist later in this article).
3. Why should I get a Pre-Nuptial Agreement?
People opposed to prenups frequently claim that having a ‘ready-made divorce settlement’ makes it easier to walk away from what should be a lifetime commitment. In our experience, it’s often the opposite.
Prenuptial negotiations bring out all those hidden issues that can cause arguments in the future. Taking the time to work through these concerns together can build a strong foundation for your relationship.
4. Aren’t Pre-Nuptial Agreements just for the wealthy?
No. It’s worth considering a Pre-Nuptial Agreement for any of the following reasons:
- There are assets and/or property that would be hard to split 50/50
- You, and/or your partner, have children from a previous relationship and want to ensure certain assets are reserved for them and protect their inheritance rights. (It is also crucial tomake a Will for the same reason.)
- You want to protect inherited money or assets
- You want to safeguard substantial savings or expected future inheritance
- You want some say in how financial issues would be resolved in the event of a marriage breakdown (especially if you’ve suffered unfairness in divorce courts previously)
- You, or your partner, own a business and would like to retain control of it if the relationship ends.
- If your partner has outstanding debt, a prenuptial agreement with a ‘debt clause’ can protect you from being liable for that debt.
5. What should I include in my Pre-Nuptial Agreement?
Just as every marriage is different, so is every Pre-Nuptial Agreement and they are tailored to each couple’s circumstances. However, it’s common to include an inventory of each partner’s assets and details of how they are to be dealt with in the event of a divorce.
6. Can we get a Pre-Nuptial Agreement after we’ve married?
No, but you can enter into a Post-Nuptial Agreement after you’ve married which works in much the same way.
7. We’re not getting married, can we still get a Pre-Nuptial Agreement?
The equivalent of a Pre-Nuptial Agreement for unmarried couples is a Cohabitation or Living Together Agreement. These work in much the same way as Pre-Nuptial Agreements, but often also cover the management of finances during the relationship, such as who will pay the rent or mortgage and bills.
Pre-Nuptial Agreement checklist
As we mentioned earlier, while Pre-Nuptial Agreements are not legally binding in the UK they are usually upheld. Exceptions to this are where it is not in the best interest of any children involved and if the agreement is deemed unfair.
With regards to the latter, the court will look at things such as whether both parties understood it properly and if they had enough time to review it before signing.
To help ensure your Pre-Nuptial Agreement has the best chance of being upheld in divorce court we’ve put together the following checklist:
- To comply with UK law, the pre-nup must be drawn up by a qualified solicitor.
- Both parties must have separate solicitors to avoid any claim of conflict of interest.
- Both parties must fully understand the agreement and voluntarily agree to it.
- Both solicitors must confirm it was entered into freely and knowingly.
- The prenuptial agreement should be signed at least 21 days before the marriage.
- All assets and property must be fully disclosed by both parties.
How we can help
At Osborne Morris & Morgan, we provide skilled advice on the steps you can take to reduce the possibility of costly arguments over property and other assets if your relationship does not work out.
Already married? Don’t worry, we can help set up a Post-Nuptial Agreement which will be treated in the same way as a Pre-Nuptial Agreement.
For £79 + VAT we can offer you an initial consultation to provide preliminary guidance to enable you to decide on the best way forward.
If you would like to discuss the above in more detail, please get in touch with our friendly Law Team on 01525 378177, email us on firstname.lastname@example.org or contact us online.