Mackrell Turner Garrett

National Lawyers, Internationally


Pre-Nups, No-Nups, What Nups?

White Collar Crime

Many will be aware of the concept of Pre-Nuptial and Post-Nuptial Agreements. The Law Commission’s most recent report (February 2014) which considered the financial arrangements between those in relationships suggests changes in legislation for such agreements to become enforceable in England and Wales. However, this does not help some 5 million people who are not married and not planning to marry but are living together, in setting out their financial plans upon separation or during cohabitation.

The current law in England and Wales in relation to cohabitees is uncertain and the frequently quoted myth of the ‘Common Law Marriage’, namely the mistaken belief that cohabitees acquire the same rights as married couples after living together for a period of time, simply does not exist. There is no legal concept of a common law spouse in England and Wales.

In the absence of legislation on cohabitation, there have been numerous cases whereby the parties have sought clarification from the courts. The widely reported case of Jones v Kernott UKSC 53(2011) provided, what most would regard, as a fair outcome and imported concepts of fairness into a cohabitation dispute.

In 2011 it was announced that the government would not be undertaking any reform of cohabitation law before the next general election and therefore there will be no change to the legal position by legislation for a number of years, if at all.

This is why so many cohabitees are seeking advice on No-nuptial Agreements, legally termed Cohabitation Agreements. Unless there is a clear, legally enforceable agreement in writing as to the ownership of property while cohabiting and upon separation, the couple will find themselves in real difficulties when trying to determine the ownership of property. The law is not particularly clear as it can be the case that a person who makes no contribution or non-financial contributions to the relationship and property i.e. bringing up the couple’s children, will, if a property is owned in their partner’s sole name, have an up-hill struggle to obtain a share of that property, with no guarantee of success.

Despite the importance of having a No-Nup /Cohabitation Agreement in place it is estimated that only 15% of couples actually do have a written agreement setting out their shares in the property. These Agreements can be entered into prior to or during cohabitation and are clearly, given the uncertainties in the law, a better way to resolve issues of ownership. For a relatively small cost depending on the complexities, cohabitants can have peace of mind when planning their life together.

“With so many couples deciding not to marry but living as a married couple it is no wonder there has been a significant increase in the demand for No-Nups. If you are considering purchasing a property or moving in with your partner go and speak to a specialist about these Agreements.”