If you’re planning to live together why wouldn’t you be completely honest with one another?
Honesty is the basis of a living together or prenuptial agreement – something we at Ashtons Legal know all about.
An agreement makes untangling the web of who gets what if the unthinkable happens and a couple separates a lot more straightforward.
Without an honest and frank agreement in place, how would a couple consider what happens to the money parents lent to help their child buy a house?
If the parents want it paying back, do both halves of the couple owe money – or just their child?
If the house is sold, is the parents’ money part of their child’s share?
If one half of the couple brought considerably more money to the household, will it be considered ‘joint’ money to be shared evenly if they split?
What about his collection of vinyl that she fell in love with, or the family heirlooms he gave her? Can she keep any or all of this?
Would a pre or postnuptial agreement or a living together agreement make a world of difference?
Solicitor Stephen Williams of Ashtons Legal says the days when people believed that prenups and living together agreements were worthless have gone, following a landmark case in 2010 which established that provided the agreement was entered into correctly, the courts are likely to uphold it.
Ashtons Legal will ensure that an agreement meets the key criteria a court insists on for it to be enforceable, he explains.
The key points are that both parties must set out why they are entering into the agreement. They must both fully disclose their financial circumstances with a full and transparent schedule of assets, income and liabilities.
Plus both parties must be mentally capable of entering into the agreement, and both must be separately, and legally, represented.
“A court would need to know that both parties entered into it knowingly; we have to show that both sides understand exactly what it is about,” explains Stephen.
How can I get a living together or separation agreement?
One individual’s solicitor drafts the agreement and their partner takes that draft to discuss or amend with their own solicitor. Both people need to be completely happy with the agreement before signing.
Stephen and Joanna Cotgrove, a fellow Ashtons Legal solicitor agree that some couples may find planning a living together or prenup agreement rather unromantic.
“Some people feel discussing finances is something they cannot raise with their partner. But loving the person and talking about finances are not mutually exclusive,” says Stephen.
Joanna and Stephen said introducing the topic of a living together agreement – also known as a cohabitation agreement – or a pre-nuptial agreement before marriage – can be a catalyst for some couples.
“It has happened that someone has come in to discuss what they want to happen and they have not been clear with their partner what the meeting was to be about,” says Stephen.
“It is an agreement, so both parties have to agree,” he says, adding that Ashtons Legal make it clear that couples need to be open and honest with one another and have conversations about what is to be agreed.
“They need to trust each other, if there is not trust about financial matters, that is a real problem right there, potentially,” says Francesca.
A couple needs at least 30 days between signing the agreement and marrying. This ensures they don’t feel pressurised or rushed in the run-up to the ceremony and the agreement is not just another item to hurriedly tick off their to-do list.
It’s not all money either, continues Joanna.
“People may want specific assets not to go into the general matrimonial or couple coffers. That might be assets they have inherited from family members, like Great Uncle Joe’s wine collection, and they want to set out that these are theirs come what may,” she says.
Can a separation agreement be changed?
Living together and pre-nuptial agreements can be altered, if both parties agree, and Ashtons Legal advises reviewing agreements every two to three years to ensure they remain relevant.
What was perfect at the start of their relationship or marriage may, children or an inheritance later, need reviewing.
Joanna said co-habitation agreements are becoming more common as couples increasingly recognise that, in law, there is no such thing as a common-law husband or wife.
“They do not have the same rights as a wife or husband. People enter into these agreements because they want certainty about what will happen.”
What is the cost of a living together or separation agreement?
The cost of a co-habitation or pre or postnuptial agreement varies depending on its complexity. But it generally costs in the region of £1,500-£2,000 to have a draft one drawn up by a solicitor.
Talk to us at Ashtons Legal and we can discuss your requirements in full detail.
Once agreed and signed, each partner and each lawyer receives a copy.
Can I use a living together or prenuptial agreement template from the internet?
Templates can be downloaded but completed templates are unlikely to be enforced by the courts.
There are a number of reasons for this, including the individuals not being legally advised, so the agreement would not meet the court’s requirement of each party having had legal advice.
“Each party may be unlikely to disclose their financial situation or think about the nuances of the agreement,” says Joanna.
They might not explain why they are making the agreement, which a court in the future would need in order to enforce it.
“The couple may discover that their downloaded agreement is not enforceable by the court,” says Joanna.
Should I have a separation agreement?
An agreement would set out exactly how possessions and finances – including debts – would be divided in the event of a separation.
“If children are helped by their parents they need to think about how the bank of Mum and Dad is going to be repaid. If the money is a gift, the parents might want their money to remain with their child.”
“It is very sensible – the peace of mind is well worthwhile,” added Joanna.
Ashtons Legal offers a full range of legal services to business and individuals from its offices in Norwich, Cambridge, Ipswich and Bury St Edmunds.
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