If your relationship has broken down, it will be a stressful enough time for you without the added worry of what happens to the children, the house or any assets.
If you’ve managed to come to an amicable agreement with a partner about money, property or the children, it does make things easier.
If you can come to an agreement that you’re both happy with, either between yourselves or with the help of third parties (mediators, for example) that’s great news. It will reduce the overall costs of your divorce or separation, and make sure that any assets can be kept. It also means less time spent dealing with solicitors and/or the family courts.
What type of things do you need to agree?
There are three main types of legal agreement that you’re likely to come across in family law.
- Separation agreements
- Pre and post-marital agreements – (sometimes referred to as pre and post-nuptial agreements)
- Living together agreements – (sometimes referred to as cohabitation agreements.)
Our experienced divorce and family solicitors and lawyers can help you with all of these.
A separation agreement is often needed when a relationship breaks down and arrangements need to be put in place around finances, property or children. This can cover anything from the financial issues, the occupation and future ownership of a family home and sometimes child maintenance.
A legal document will set out what you have agreed, and in most divorce cases this will be the basis of what’s called a ‘financial remedy’ order.
The court order
The court will take a separation agreement into account during any connected divorce or family law proceedings but doesn’t have to make exactly the same order. In most cases, the court does follow the wishes of the parties, as long as they have both been given the opportunity to take legal advice before signing the agreement. They must also have disclosed their financial circumstances at the time of entering into the agreement – unless something major has changed.
Couples are usually encouraged to come to an agreement and also to get a financial remedy order if they have decided to divorce or separate. A financial remedy order is preferable to a separation agreement, because you can only get a clean break agreement and agreement to share any pension put in place if the order has been made as part of divorce proceedings.
Our family lawyers are experienced in this type of family law issue and will be able to talk you through the details.
Who should consider having a separation agreement?
- Couples who live together and are separating.
- Married couples who separate but don’t intend to divorce straight away, or at all.
- Civil partnerships and same sex relationship when no legal steps to end the relationship are to be taken straight away, or at all.
Pre- and post-marital agreements
Pre-marital (or pre-nuptial) agreements have been around for a while but are becoming more common. A ‘pre-nup’ isn’t a legally binding document in England and Wales*, but at the same time, a court should normally take it into consideration when making any orders.
*The Law Commission has recommended that a pre-nup should become a legally binding document if it meets both parties’ financial needs and those of any children – and if it meets certain conditions. So, it’s definitely worth having something in place.
You should consider having pre-marital or post-marital agreement if you;
- have substantial capital or income
- have inherited, or you will inherit, family assets/capital/ businesses
- have a business yourself
- already have children
- are considering marrying someone from another country.
A post-marital (post-nuptial) agreement is a legal agreement made between people who are already married.
Similar to a pre-nup, it will set how the couple want to divide up any assets if they later separate or divorce. Some post-marital agreements also detail how the couple currently arrange their finances and how this will continue or change during the marriage. They are also available for people in a civil partnership, where the agreement is just called a post-civil partnership agreement or post-registration agreement instead.
Living together agreements (cohabitation agreements)
Living together agreements are also becoming more common – couples should consider opting for a cohabitation agreement if they aren’t married, especially if they don’t intend to marry.
It’s a common misconception that people who live together as a couple, even if it’s been for a long time or they have children, have the same legal rights as married couples (or those in any formalised relationship like a civil partnership)
It can be very difficult to prove that you have a legal interest in a partner’s property, even if you’ve put a lot of money into the property yourself or in some cases if it’s in joint names. If one party wants to sell the property and one doesn’t it can create problems, too.
Because any court proceedings have to be issued under property and trust law, instead of just family law, things can get very complicated (and costly) very quickly if there’s no agreement in place.
If you make a cohabitation agreement in advance, you both know where you stand if things should go wrong and you separate. If you both have a legal interest in a family home, it will set out who owns what, or if it’s equal shares. If the situation changes with ownership, interest in the property or financial contributions, it can be documented.
A document like this will save you a lot of time, money and stress at what can be a difficult time.
If you’re considering living with a new partner, or you currently cohabit with your partner and you’re not married we can help you both with a living together agreement that covers all eventualities. It’s especially important to get everything agreed in advance if you’re thinking of buying a property or setting up/going into business with them.
Talk to our experienced family solicitors in Ipswich and or family solicitors in Colchester about financial agreements, children’s law and any other family law issues.