Most people live their lives without interference from the courts. This changes when couples divorce, as at present the only forum to make any binding decision regarding children or financial arrangements, or to bring a marriage to an end, in England and Wales, is the court.
However, outside this regime, many people do benefit from a range of family based arrangements that recognise the generally-recognised growing push towards personal autonomy in the 21st century. To reach your own decisions, together, which may indeed outlast the relationship, is the “right thing to do”. You need independent legal advice, you need to know the facts (the assets etc) with which you are dealing, and you must not be under undue pressure from the other party. If you can meet these tests, our courts are very unlikely indeed to upset any agreement fairly reached.
Separation agreements are used by many couples, whether married or in a civil partnership, to reach agreement either while waiting for divorce (and there is no such thing as no fault divorce in England and Wales), or instead of any formal change in marital status. The terms usually relate to financial matters, but can also include arrangements for the care of children, the distribution of personal assets and indeed any issue that is relevant to the particular couple.
Pre-nuptial agreements (“prenups”) are becoming increasingly common in our jurisdiction. Once the preserve of the wealthy, now many more people use them, particularly for second marriages, for those of more mature years with pre-acquired wealth, for business owners who want to protect third parties and investors, or in families where parents have given money to their offspring that they do not want to share if their child divorces. Prenups are a very good investment for anyone wanting to avoid the stressful and undoubtedly expensive process that arises in the event of divorce where, at a time of much change, it is hard to recall the common wish for wellbeing that formed the basis of the relationship in the first place. If you have a prenup, you are deciding on future division at a time when you want to be fair.
Cohabitation agreements or no-nups are less common, but arguably more necessary. English law for cohabitants has been in need of reform for many years, and with so many people choosing not to marry, as there is in fact no such thing as a “common law spouse” the only way to ensure fairness is to have an agreement on the terms of your cohabitation from the outset. Otherwise the weaker party economically can end up very badly off indeed.
Graeme Fraser and Hazel Wright
Partners, Family Law Department