Same Sex Pre-nuptial Agreements

Post-nuptial agreements offer an alternative to a pre-nuptial agreement that can be entered into after you are already married. The requirements and implications are broadly the same as for a pre-nup, although the negotiations required can sometimes be more sensitive, especially if the reason for creating the agreement is to do with a specific issue that has arisen during your marriage.

If you choose to enter a civil partnership, rather than getting married, a pre-civil partnership agreement is the relevant equivalent to a pre-nup.

If you are living with your partner without getting married or entering a civil partnership, or planning to do so, a living together agreement can be a good idea. This is a legally binding agreement that sets out the rights of both parties to any shared assets in the event your relationship ends.

Living together agreements are perhaps most commonly used where one party owns a property where the couple will be living. This will clear up what rights, if any, the non-owning party will have to the property, if, for example, they contribute towards the mortgage.

A living together agreement is essential if a couple who are not married or in a civil partnership buy a property together. This is especially true if one of them will be contributing more towards the mortgage than the other, as it can define what proportion of the value of the property each of them will be entitled to in the event their relationship ends and the property is sold.

Pre-nuptial agreements are not currently legally binding in the UK, however, judges will usually take a pre-nup into consideration when deciding on a financial settlement during divorce proceedings. A pre-nup can also make it easier to reach a voluntary agreement during a divorce, as your intentions prior to the marriage will be clearly laid out.

For a same sex pre-nuptial agreement to be considered by a judge, the following conditions should apply:

• Both spouses should have received independent legal advice before signing the agreement.
• A full and frank disclosure of both parties’ assets should have been made before the agreement was signed.
• The agreement should not have been signed less than 21 days before the marriage.
• Neither party should have been under pressure or duress to sign the agreement.
• The agreement should be fair and realistic - if the division of assets is weighted too heavily in favour of one party, a judge may deem it invalid.
• The pre-nuptial agreement should have been reviewed and amended if any significant changes in circumstances occurred during the marriage e.g. the birth or adoption of any children or the acquisition of substantial new assets.

If you wish to challenge a pre-nuptial agreement, failure to meet any of these conditions will usually be your best option.