Civil partnerships for gay couples came into force in December 2005 and since 2013, following the introduction of the Marriage (Same Sex Couples) Act in 2013, same sex couples have also been able to marry.

Whether a civil partnership or a marriage, the legalisation of your commitment to your partner brings many changes. Whilst most of them are positive, finances can be a dark cloud hanging over your big day. This may be because one or both of you have assets in your name that, ideally, you would like to remain  separate from your relationship.

What is my other half entitled to when we legalise our relationship?

By legalising your relationship with your other half you mingle your finances in the eyes of the law. If you have assets in your name or know of assets that you are likely to be receiving (for example, from an inheritance), then you may be wondering how you can keep them separate from the wealth you and your partner will build together.  

In England & Wales the court can take all assets (including those accrued before the civil partnership or marriage) into account when the partnership or marriage is legally brought to an end. In doing so, the court will take many factors into account.  One such factor will be whether there is a Pre-Civil Partnership or Prenuptial Agreement in place.

Do I need a Pre-Civil Partnership or Prenuptial Agreement?

In England and Wales, Prenuptial and Pre-Civil Partnership Agreements are not automatically legally binding. That said, since the court ruling in the case of “Radmacher -v- Granatino” legal recognition has been given to such Agreements. In order for the court to give weight to any such Agreement, it must be satisfied that:

• The Agreement was entered into freely and voluntarily

• Both parties signing the Agreement recognised and appreciated the implications of signing it

• Both parties disclosed their finances and relevant circumstances at the time the Agreement was being prepared

• Both parties intended for the Agreement to be binding if legal proceedings were issued to end the marriage or civil partnership

• Both parties have taken independent legal advice, or at the very least had the opportunity to do so.

In addition to the above, the court has to be satisfied that the Agreement is fair and that it will meet yours and your partner’s “needs.”

It is important that the Agreement is kept up to date as your circumstances change, for example if a child is born or adopted. The court is less likely to uphold an Agreement that is obviously out of date and no longer a reflection of your current circumstances. 

If you have a Pre-Civil Partnership or Prenuptial Agreement, please check that it remains accurate. And if it isn’t, please talk to us about updating it.

Timing of the Agreement is important. At the very least, there must be four weeks between the signing of the Agreement and the date of your union. Ideally there will be longer.  If there are reasons that it cannot be signed more than four weeks before the ceremony, there are other Agreements that can be put in place and these are called Post-Nuptial or Post-Civil Partnership Agreements.

Get in touch with our LGBTQ+ family solicitors

At Birkett Long we will be happy to advise you about your own situation, whether you have a simple enquiry as to the validity of your Agreement, or whether you need more information before making a decision on whether you should have an Agreement, and of course we will be able to draft the document  for you. If you would like advice, please do not hesitate to contact one of our specialist family lawyers for a free 15 minute phone conversation