Do nuptial agreements have a role in modern families?
Modern families take many forms. So-called nuclear families (with a husband, wife and two children to whom they are both biologically related) have become gradually less common, with a corresponding increase in the number of people entering into same-sex marriages or civil partnerships, marrying for the second or third time or choosing to remain unmarried.
Regardless of the legal status of your relationship, formal agreements can play a vital role in clarifying and protecting you and your partner's respective interests.
Since 2014, same-sex couples have been able to marry in England, Scotland and Wales (though unfortunately not in Northern Ireland). The law dealing with financial provision on divorce is the same regardless of whether the parties are in a same- or opposite-sex relationship. As such, the benefits of entering into a nuptial agreement (for example, to protect of pre-marital or inherited wealth, or to avoid the uncertainty and cost of litigation) are equally applicable to same-sex married couples.
According to the Office of National Statistics, same-sex couples marry at an older age than their opposite-sex counterparts. As a result, there tends to be more time for those in same-sex relationships to establish their respective careers and build up assets in their own right before marrying. A nuptial agreement could be used to ring-fence these assets, protecting them from being raided on any future divorce.
Civil partnerships were introduced in the UK in 2005, providing legal recognition of same-sex relationships outside of marriage. Civil partnerships and married couples have the same rights and responsibilities in many areas, with only minor differences in how their relationships are legally formed and dissolved. In 2018, the government announced its intention to legislate to allow opposite-sex couples to enter into civil partnerships.
The same principles apply when dealing with financial provision following the dissolution of civil partnerships as on divorce, with the only difference worth noting being that a (pre- or post-) nuptial agreement may instead be known as a (pre- or post-) civil partnership agreement.
The average ages of couples entering into civil partnerships is 50[.3] for men and 49[.5] for women. Therefore, there tends to have been a significant period of time for wealth to have been accumulated before the civil partnership ceremony takes place. As with nuptial agreements, civil partnership agreements can be a useful tool for ring-fencing these assets.
The Civil Partnerships, Marriages and Deaths Bill recently gained Royal Ascent on 26 March 2019 enabling the government to change the law so that opposite-sex couples can form a civil partnership. The Act will come into force later this year, therefore couples interested in forming such partnerships in due course should reflect upon whether a civil partnership agreement would be beneficial for them.
A growing phenomenon is the "silver splicer," people aged over 60 who may be marrying for a second or third time. It is common for clients in this situation to seek to preserve their assets for any children they have from their previous relationship, without fear of them being raided on divorce. A nuptial agreement can perform this role.
According to the Office for National Statistics, cohabiting couples (i.e. those that have not married or entered into civil partnerships) are the UK's fastest growing family type. Unfortunately, the law treats these couples very differently to their married counterparts, with no automatic financial claims against their partner if their relationship breaks down.
There are a number of practical steps that cohabiting couples can take to protect themselves. Although a nuptial or civil partnership agreement would not fit these circumstances, a cohabitation agreement may well be helpful. This would set out the couple's respective property, confirming how it is held and what will happen to it in the event of relationship breakdown. Like nuptial agreements, they can help avoid the cost and uncertainty of litigation and allow for the preservation of assets.