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Written Family Agreements

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Written Family Agreements

The are several types of written family agreement available to couples and, sometimes, to wider family members.  This page will outline some of the more common types of agreement on which we regularly advise our clients.

Pre-Nuptial Agreement

We often hear people remark that these are not a particularly romantic thing to sign before getting married.  However, a well-prepared agreement will support and promote marriage rather than focus just on what happens should it break down.  It can provide peace of mind and, if the marriage does later break down, the couple can divide their assets and separate amicably without argument over the division of the assets.  The written document will, therefore, record the intentions of the couple should things not go to plan.  There are various requirements which need to be satisfied in the written agreement which include:-

  • It must not be entered into under pressure or duress.
  • The financial position of each person must be fully disclosed.
  • Each person needs to have received independent legal advice before the agreement is signed.
  • It must the signed a reasonable time before the marriage (usually a month).
  • It must ultimately be fair.

It is important to remember that a Pre-Nuptial Agreement (or any other family agreement) is not binding on a court.  This means that a judge could decide a case differently from the written agreement.  However, where the above requirements are fulfilled, it is likely that the agreement will be upheld.

Post Nuptial Agreement

This is much the same as a Pre-Nuptial Agreement although it is obviously entered into by a couple after they have married or entered a civil partnership.

Separation Agreement

There are sometimes situations where a marriage or civil partnership has broken down although the couple do not yet wish to take the huge step of applying for divorce.  In some cases, there may be religious reasons why divorce is not possible or perhaps they have not been married long enough to divorce or dissolve a civil partnership.  In these circumstances, it may be appropriate for a couple to enter a written separation agreement which may refer to such things as:-

  • When one or both may apply for divorce or to dissolve the civil partnership.
  • To confirm the arrangements for any children.
  • To show how financial matters are to be agreed and confirm that it is intended for the court to make an order in the agreed terms.

Once again, the separation agreement will not be binding on a court but is likely to be followed if the terms are fair.

Frequently Asked Questions

If a written agreement is disputed, then a court may need to decide whether it should be upheld.  The court will need to see that the requirements listed above are met and generally that it is fair for it to be upheld.

We cannot force the other person to do this, and the written agreement will need to confirm the situation.  It does however create a potential weakness.

Always and we will advise you on our trusted colleagues who can assist with this.