Family
Pre-nuptial and Cohabitation Agreements
Pre-nuptial Agreements
Over the last few years there has been a steady increase in the number of couples who wish to regulate their financial arrangements on divorce, recognising the high incidents of marriage breakdown. A common arrangement in Europe and in the USA, Pre-nuptial Agreements are catching on in England and Wales. They have been given greater impetus by recent House of Lords and High Court decisions regarding the way in which a couple should share their assets in divorce.
Although they are not binding on a Court in divorce or judicial separation (where the Court retains an unfretted discretion to make such Orders as it consider appropriate), "Pre-nups" are viewed as a significant factor which the Court should take into account. They is a growing body of opinion that it will not be long before the Higher Courts lay down guidelines based upon which they would be more likely than not to approve an Order in the terms of the Pre-nup. These factors are likely to include:-
(a) a full and frank exchange of financial circumstances by the couple;
(b) separate independent legal advice for each party;
(c) the completion of the Pre-nuptial Agreement at least 21 days before the marriage.
The team at Lyons Davidson have considerable experience in drafting Pre-nuptial Agreements and will readily do so sitting with the other party and their legal advisors, to ensure that a document is prepared that is acceptable to all.
Cohabitation Agreements
The incidence of cohabitation is steadily increasing. Many people are under the misconception that after a period of time (often 1 year) they become "common law husband and wife". The English Courts have not recognised such a principle for over 200 years! More and more couples wish to regulate their domestic arrangements to include the plans that they wish to put in place in the sad event that their relationship breaks down. As with Pre-nuptial Agreements, the Family Team at Lyons Davidson have extensive experience in drafting Cohabitation Agreements. The senior Courts have not yet confirmed that they will enforce Cohabitation Agreements as the traditional view is that they promote immorality (!). However, there is a wide-spread view that if the couple have had separate independent legal advice, a Court is more likely than not to uphold the terms of the Cohabitation Agreement if there were to be an issue over the validity of any term.
It should be borne in mind that whether entering into a Pre-nup or a Cohabitation Agreement, the arrival of children is likely to bring into question the enforceability of the Agreement (unless it contains appropriate provisions for the support of those children).
Contact: James Myatt or Richard Crallan