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Prenuptial agreements & Cohabitation agreements FAQ

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• What is the current position with common law wife/husband?
• Are pre nuptial and pre partnership agreements now binding and are they of any use?
• What agreements should I consider putting in place if I am going to cohabit with my partner?

What is the current position with common law wife/husband?

There is no such thing as a common law wife or husband. Either a party is married to the other party having gone through a civil ceremony of marriage or they are not.

If parties are married the provisions relating to the marriage above are relevant. If the parties are not married there is little comprehensive law covering their positions and this leaves a cohabitant very vulnerable with limited possibility of financial claim on the other partner.

In certain cases claims are possible in relation to the home in which the parties live. This generally entails some form of financial contribution having been made to the property or for there to have been a common intention that the property would be shared. The law is complex and legal advice should be taken.

There are always financial responsibilities for children. Those financial responsibilities may vary according to the individual financial circumstances of the parities.

Unfortunately the Government recently shelved proposals to provide cohabitants with certain rights and benefits upon separation. There is no certainty as to when or if cohabitants will achieve any rights in relation to the other’s property, assets or income as a result of the relationship.

For more information please see our pages on unmarried couples rights and unmarried father's rights.

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Are pre nuptial and pre partnership agreements now binding and are they of any use?

No, pre nuptial or pre partnership agreements are not legally binding at present but that does not mean that they are not very useful documents.

Firstly the issue of enforceability only arises if one or other party wants to depart from the terms of the agreement and make financial claims on the other over and above that previously agreed. In very many cases the provisions set down in the agreement are followed in the event that the marriage/partnership breaks down. In those cases the agreement provides a useful and accurate record of what was agreed at the outset.

An agreement can be persuasive upon a court at later date when considering how the court should use it’s discretion in dealing with financial claims. However if the content of the agreement is to be taken into consideration (no matter to what extent) some basic procedures must have been carried out at the outset. Each party must have given financial disclosure of their income, assets, pensions and liabilities and each must have had the opportunity to take independent legal advice before signing.

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What agreements should I consider putting in place if I am going to cohabit with my partner?

If the home is to be purchased in joint names and one or other party is financially contributing more than the other (this may be a deposit paid by parents or similar) then there should be a trust deed in place to record the respective shares in the property.

If parents are lending or contributing monies then they should obtain separate legal advice to protect their positions. All cohabitants should consider having a cohabitation agreement which sets out what is to happen both during the relationship (who is to pay what bills etc) and in the event that the relationship breaks down (who is to remain in the home etc). It is also useful to cover what is to happen should one party die. These arrangements are not legally binding but as with the pre nuptial agreement provided certain procedures are followed they can be very useful documents in the event of a later dispute.

Cohabitants who already have some wealth ought always to consider such agreements.

For more information please see our pages on unmarried couples rights.

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If these or any other issues relating to family breakdown are problems for you please contact us.