When families separate, often two narratives arise: an agreement can avoid the “she said he said'' arguments by showing exactly what each party intended.
You may be familiar with pre-nuptial agreements (PNA), less so with the actual implications and when they will be binding (note: these are relevant for marriages or civil partnerships).
Great care must be taken to ensure that preparing the agreement does not cause unhappiness and mistrust.
Legal advice demonstrates that each party understood the implications and the agreement was entered into freely.
We also draft a range of family agreements covering various other situations, including:
- Unmarried couples who wish to set out the financial arrangements if they live with each other (cohabitation agreements);
- Civil partners, married couples who want an agreement after they marry or enter a civil partnership (post-nuptial agreement);
- Separation agreements (for all couples who are separating); and
- Parenting agreements.
Key Points
In all cases, any agreement cannot stop a court becoming involved at a later date, but these agreements can be crucial in determining how the court decides to deal with your case.
They are a starting point, and if properly prepared can be an end point too.
When families separate, often two narratives arise: an agreement can avoid the “she said he said'' arguments by showing exactly what each party intended. Provided this remains fair, the agreement should prevail.
Generally
Ideally both parties should have separate solicitors who draft and finalise the agreement, and advise you on the consequences and any points which should be added or deleted.
Timing can be an issue with a PNA: if drafted close to the marriage date, this can imply undue pressure to agree to the terms and should be avoided.
Similarly, with cohabitation agreements it is clearly preferable, although not crucial, that people are clear on the details before they start living with each other.
Costs and timescales
Like many areas we deal with there is no one size fits all: costs vary from agreement to agreement. The key is the attitude each of you takes. High levels of scrutiny, or excessive “whatifery” will increase legal costs significantly and raise the temperature between you, often for no real gain.
Generally, you can each expect to pay a minimum of £2,500 to £5,000 plus VAT. Most agreements can be drafted quickly, and a month to 6 weeks is typical to agree and finalise such a document.
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When should I make the agreement?
There are no hard and fast rules as such, generally it takes between 4-6 weeks from start to finish. Ideally you should look to get the agreement drawn up and signed at least a month before you get married. The reason is simple: the closer to the marriage date, the harder it is to get any wrinkles ironed out, and there may be the suggestion that undue pressure was put on one party by the other. This could affect the validity of the agreement in the future.
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Are they binding?
Lawyer’s answer; yes and no. It depends on whether the agreement is considered “fair”. This is judged by the legal concept of fairness rather than your personal sense of that word. Fairness generally means meeting the parties needs at a minimum, but it can be more complicated and is fact dependent. This is why it is sensible to involve a solicitor.
If an agreement is fair, it is likely to be binding unless there is a very good reason for it not to be. This involves some crystal ball gazing about the future, but that is the nature of these agreements.
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Why bother if they aren't binding?
Good question! The advantage is a PNA will reduce risk and provide as much clarity as possible. If properly drafted and fair, it may be a central issue in any future dispute, and it’s up to the party who doesn’t want to follow the agreement to say why.
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Can I change the agreement in the future?
Yes, in fact most agreements state they should be reviewed from time to time to make sure they remain relevant and fair.
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I feel under pressure to sign, what can I do?
Don’t sign and speak to a lawyer immediately. If that feels extreme, make your views clear in writing, preferably by email so you can evidence what you felt, when and how you communicated this. But, a lack of legal advice is usually a marker for whether an agreement is actually fair, and whether you understand what you were agreeing to.
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We didn't get the paperwork sorted in time, what are my options?
No problem: instead of a pre-nuptial agreement, you can draft a post-nuptial agreement instead, or as well as, which is identical apart from the timing. In some situations this may be preferable, as it avoids the suggestion that pressure was a factor due to the timing and pressure of the forthcoming marriage.
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Can I draft my own, surely they are the same every time?
We all use templates, but it is vital the agreement reflects your situation and takes account of this, and more, does so in a way that is fair. Also, legal advice on the consequences is key in ensuring the agreement is understood and therefore binding. Otherwise, good luck!