Protecting yourself against the impact of relationship breakdown

The demands of children, family and work, as well as money problems, can place a huge strain on marriages and long-term relationships. People change as a relationship progresses and sadly separation sometimes becomes inevitable.

Splitting up is never easy with issues such as asset division, family financial provision and childcare arrangements, which all in need of sorting out before a couple can start their new lives afresh.

Matters are made even more complicated if businesses or inherited wealth are involved, but as Robert Bellhouse, family law specialist at Ware & Kay Solicitors in York and Wetherby explains, ‘much of this stress could be alleviated by couples formally agreeing how their assets should be divided before they marry or move in together.’

Nuptial agreements

A nuptial agreement is a legal document, agreed by a couple either before the wedding (prenuptial agreement) or after they marry (postnuptial agreement), which sets out how they want to split their assets if their marriage breaks down. The aim is to avoid the strict rules on asset division which a court will otherwise apply on divorce.  

Any such agreement should be drafted to reflect the particular needs and circumstances of each couple but could include clauses covering: whether a spouse can keep inherited wealth; how bank account money and property should be allocated; what happens to a family business; how debts should be dealt with; who children will live with; what happens to pets; and who should get personal belongings bought together, such as cars and furniture.

Nuptial agreements were recognised as enforceable under UK law in the Supreme Court’s landmark decision of Radmacher v Granatino; however, courts may still disregard them if the three-stage fairness test set out, in this case, is not satisfied.

This requires that:

• the agreement is entered into freely;
• the parties fully understand the implications of their agreement; and
• the prevailing circumstances make it fair to hold the parties to their agreement (so, for example, if the children of a marriage are likely to suffer if the agreement was enforced, it is likely to be set aside).

To ensure a nuptial agreement is enforceable, it is also important that both parties have legal advice from different lawyers before the agreement is entered into, to avoid any conflict of interest. Both parties must fully disclose all the assets they have, there should be a cooling-off period of at least 28 days before the agreement is signed, and, in the case of a prenuptial agreement, this must be signed at least 21 days before the wedding.

Cohabitation agreements

Unmarried people who live together do not enjoy the same legal protections as couples who are married or in a civil partnership. When a relationship between an unwed cohabiting couple ends there are therefore numerous legal issues that can affect what happens next.

For example, either partner could clear out a joint bank account in the event of a split, whereas the money in a joint account is owned jointly by a couple as long as they are married, regardless of who put the money into the account. Married couples will both have rights over a family home, while the rights of cohabiting couples will depend on whether the property is jointly or solely owned. Neither unmarried partner has a legal duty to support the other financially, while for divorcing couples, a court order can be sought to ensure that financial provision is made.

Drawing up a cohabitation agreement is a good way for couples planning to live together to formalise aspects of their status with their partner and decide how property and belongings should be divided on separation.

How we can help

The specialist family law solicitors at Ware & Kay have a wealth of experience in drawing up bespoke prenuptial, postnuptial and cohabitation agreements to fit the needs of each couple and can make sure all the legalities of the agreement have been observed, thus making them enforceable in court.

For further information contact Robert Bellhouse, in the family law team at Ware & Kay Solicitors on 01904 716000 or email robert.bellhouse@warekay.co.uk