Prenuptial and Cohabitation Agreements

The position for cohabiting couples

Property generally follows legal ownership. Someone who is not on the title may have no automatic claim regardless of contributions to the household or length of relationship.

There is frequently no automatic entitlement to maintenance for a former partner, and no automatic inheritance if one partner dies without a will.

Pension rights, next-of-kin recognition for medical decisions, and tax treatment may all differ from married couples.

This affects large numbers of people, and the point at which they discover it is generally the worst possible moment.

Cohabitation agreements

A written agreement recording what each party owns, how property and outgoings are shared, what happens to jointly acquired assets, and arrangements if the relationship ends.

Particularly important where one partner contributes to a mortgage or renovation on a property owned by the other, which otherwise frequently produces a difficult and expensive argument later.

Should be prepared with legal advice and executed properly to maximise the prospect of being upheld.

Prenuptial agreements

Agreements made before marriage setting out how assets would be divided on divorce. Their legal status varies considerably between jurisdictions — binding in some, persuasive but not determinative in others.

Where they carry weight, courts typically look for certain features: full financial disclosure by both parties, independent legal advice for each, absence of pressure, entry into the agreement well before the wedding rather than days beforehand, and terms that are not manifestly unfair.

Agreements signed shortly before a wedding, without disclosure or advice, are the most vulnerable to challenge.

When they are particularly worth considering

Substantial pre-existing assets, a business, or an expected inheritance.

Second marriages where there are children from a previous relationship whose inheritance you wish to protect.

Significant disparity in assets or debts brought into the relationship.

Cross-border relationships, where which country's law applies can produce dramatically different outcomes.

Practical points

Both parties need separate legal advice from different firms. Shared advice undermines the agreement.

Review periodically, particularly after children, property purchases or major changes in circumstances. An agreement that made sense a decade ago may not now, and a review clause strengthens it.

Make wills as well. An agreement addresses relationship breakdown; a will addresses death, and cohabiting partners in particular are frequently unprotected without one.