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Below are a list of frequently asked questions about family law and divorce. Click a question to show the answer.
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Unmarried Couples
Q. Will a prenuptial agreement stand up in court?
A. When you marry your assets become ‘matrimonial assets’ and, unless specifically protected can be considered for division between you within divorce proceedings. The main purpose of a pre-nuptial agreement is to limit the potential claims on the assets of one of the parties to the marriage and avoid costly litigation over “who gets what”. At present a pre-nuptial agreement does not carry the same weight as a Court order and will not ‘automatically’ be upheld or enforced by an English or Welsh court in the event of a divorce and/or disagreement. The courts do however take them seriously, as a prenuptial agreement is evidence of your intentions to one another in the event of your relationship breakdown and one of the factors that a court may take into account when looking at all the circumstances of your case. The Court will carefully consider things like: 1. Did the party with the most to lose understand the nature of the prenuptial agreement? 2. Did he/she have independent legal advice? 3. Was he/she under pressure to sign? 4. Was there full financial disclosure? 5. Would an injustice be done if the prenuptial agreement were upheld?
Q. How do I get a prenuptial agreement?
A. 1. If you have decided to marry don’t wait till the last minute make it a priority in your wedding plans. An agreement signed on the way to your stag or hen party is less likely to be upheld than one carefully thought out and signed a month or so before.
2. Both parties must take independent legal advice. This avoids accusations, further down the line if things go wrong, that undue pressure was put on one party or the other to sign the agreement. It also means that both parties can ensure that the party with the most to lose understands the nature and implications of the agreement they are about to sign.
3. Full disclosure of each party’s respective financial positions must be made prior to the agreement being prepared
4. Think carefully about the terms and make the agreement as precise, clear and detailed as possible.
5. Think about and decide upon how you would deal with changes in circumstance that may arise during the marriage. For example, if you are thinking of having children, loss of employment, inheritances, pension provision, and the acquisition of further assets and what would happen in these instances.
6. Also consider putting in reviews of the agreement at agreed periods during the marriage, the length of the marriage can have a bearing on whether or not the agreement remains enforceable and regular reviews of the provision can help with this.
Q. What is a prenuptial agreement?
A. A pre-nuptial agreement is a document in which a couple set out their rights to any property, debts, income and other assets purchased together or acquired individually or that they have bought into their relationship in the event that the relationship ends.
Q. Do I need a prenuptial agreement?
A. If the answer “Yes“ to any of the following scenarios a prenuptial agreement could be right for you. 1. I am thinking of getting married and want to protect my property in case it doesn’t work out. 2. I am about to marry for the second time and want to limit any potential claims on the settlement I received from my first marriage if things go wrong again. 3. I am a widower thinking of marrying again. I want to protect my assets in case things go wrong. 4. I am about to marry but worry that if things go wrong we could end up in a costly and lengthy argument about “who gets what” 5. I am about to marry for the second time but want to protect my assets to ensure I have something to leave in my will to the children from my first marriage if my new relationship breaks down.
Q. How will our children be effected?
A. The biggest issue from your children’s perspective is that all of a sudden, they may be faced with seeing a lot less of Mummy or Daddy, and it can be hard for them to adjust. It is sensible, if possible, to try and establish a regular routine of contact with your children and your ex, so that everyone knows what to expect when. It can be helpful to colour in sections of the calendar as “Mum time” and “Dad time” so that everyone knows where they stand. If the relationship has completely broken down to the point where this not possible, you can issue court proceedings to decide where the child will live, how often and where they will see the non-resident parent. You can also ask the court to make orders on specific issues where necessary. Financial support is another issue that may impact on your children, following the breakdown of your relationship. Many people believe that the amount of maintenance they have to pay is linked to how often they get to see their child and if they do not have any contact, they do not have to pay maintenance. This is not the case. Child maintenance for unmarried couples is usually dealt with by the Child Support Agency, and the minimum that the non-resident parent will be expected to pay will be in accordance with the CSA’s guidelines.
Q. Will I get maintenance?
A. At the moment, you will only get maintenance for the benefit of your children with the partner you are splitting from. The law in England and Wales does not currently recognise the concept of a “common law” husband or wife, contrary to popular belief. However, watch this space as the Law Commission is considering reforming the law in this area.
Q. What are my rights if we separate?
A. Contrary to popular belief, there is no such thing as a “common law” spouse, and the laws protecting co-habiting couples are not as comprehensive as matrimonial laws. That means there are few automatic rights for cohabiting couples. The following would need to be taken into account in terms of understanding your rights in relation to property, assets and any children in the relationship: Property – is your name are on the deeds to the property? If yes then you will have some rights. If not there are some circumstances which may allow you to claim an interest in or possibly a right to occupy your former partner’s home, for example if you have paid money towards it, or if it has been occupied by you as a home for the children of the family. This is a complicated area of law and it is very important you take professional advice. Join Assets – who purchased the asset (for example a car, large item of furniture or expensive painting or ornament)? Children – a mother automatically has parental responsibility for her children, meaning she has rights and responsibilities in relation to where they live, go to school etc. Unmarried fathers will only automatically have any rights in particular circumstances. These are detailed in the Parental Responsibility section of this site.
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