When should you get a living together agreement?
PUBLISHED: 14:32 16 August 2018 | UPDATED: 11:29 07 November 2018
Living together or planning to get married - why wouldn’t you talk about money?
Untangling the web of who gets what if a couple separates can be almost unbearably complicated.
What happens to the money parents lent to help their child buy a house?
If they want it paying back, do both halves of the couple owe money or just their child?
If the house is sold, is the parents’ money part of their child’s share?
If one half of the couple brought considerably more money to the household, will it be considered ‘joint’ money to be shared evenly if they split?
What about his collection of vinyl that she fell in love with, or the family heirlooms he gave her? Can she keep any or all of this?
Would a pre or post nuptial agreement or a living together agreement make a difference?
HOW DOES A PRE-NUP, LIVING TOGETHER OR SEPARATION AGREEMENT WORK?
Solicitor Stephen Williams of Ashtons Legal says the days when people believed that pre-nups and living together agreements were worthless have gone, following a landmark case in 2010 which established that provided the agreement was entered into correctly the courts are likely to uphold it.
Solicitors will ensure that an agreement meets the key criteria a court insists on for it to be enforceable, he explains.
The key points are that both parties must set out why they are entering into the agreement. They must both fully disclose their financial circumstances with a full and transparent schedule of assets, income and liabilities.
Plus both parties must be mentally capable of entering into the agreement, and both must be separately, and legally, represented.
“A court would need to know that both parties entered into it knowingly; we have to show that both sides understand exactly what it is about,” explains Stephen.
HOW CAN I GET A LIVING TOGETHER OR SEPARATION AGREEMENT?
One individual’s solicitor drafts the agreement and their partner takes that draft to discuss or amend with their own solicitor. Both people need to be completely happy with the agreement before signing.
Stephen and Francesca agree that some couples may find a living together or pre-nup agreement rather unromantic.
“Some people feel discussing finances is something they cannot raise with their partner. But loving the person and talking about finances are not mutually exclusive,” says Stephen.
It’s not all money either, continues fellow Ashtons Legal solicitor Francesca Easter.
“People may want specific assets not to go into the general matrimonial or couple coffers. That might be assets they have inherited from family members, like Great Uncle Joe’s wine collection, and they want to set out that these are theirs come what may,” she says.
Francesca and Stephen said introducing the topic of a living together agreement – also known as a co-habitation agreement - or a pre-nuptial agreement before marriage can be a catalyst for some couples.
“It has happened that someone has come in to discuss what they want to happen and they have not been clear with their partner what the meeting was to be about,” says Stephen.
“It is an agreement, so both parties have to agree,” he says, adding that Ashtons Legal make it clear that couples need to be open and honest with one another and have conversations about what is to be agreed.
“They need to trust each other, if there is not trust about financial matters, that is a real problem right there, potentially,” says Francesca.
A couple needs at least 30 days between signing the agreement and marrying. This ensures they don’t feel pressurised or rushed in the run-up to the ceremony and the agreement is not just another item to hurriedly tick off their to-do list.
CAN A SEPARATION AGREEMENT BE CHANGED?
Living together and pre-nuptial agreements can be altered, if both parties agree, and Ashtons Legal advises reviewing agreements every two to three years to ensure they remain relevant. What was perfect at the start of their relationship or marriage may, children or an inheritance later, need reviewing.
Francesca said co-habitation agreements are becoming more common as couples increasingly recognise that, in law, there is no such thing as a common law husband or wife.
“They do not have the same rights as a wife or husband. People enter into these agreements because they want certainty about what will happen.”
WHAT IS THE COST OF A LIVING TOGETHER OR SEPARATION AGREEMENT?
The cost of a co-habitation or pre or post nuptial agreement varies depending on its complexity. But it generally costs in the region of £1,500-£2,000 to have a draft one drawn up by a solicitor.
Once agreed and signed, each partner and each lawyer receives a copy.
CAN I USE A LIVING TOGETHER OR PRENUPTIAL AGREEMENT TEMPLATE FROM THE INTERNET?
Stephen and Francesca say these can be downloaded but the individuals would not be legally advised, so the agreement would not meet the requirement of each party having had legal advice.
“Each party may be unlikely to disclose their financial situation or think about the nuances of the agreement,” says Francesca.
They might not explain why they are making the agreement, which a court in the future would need in order to enforce it.
“The couple may discover that their downloaded agreement is not enforceable by the court,” says Francesca.
SHOULD I HAVE A SEPARATION AGREEMENT?
An agreement would set out exactly how possessions and finances – including debts – would be divided in the event of a separation.
“If children are helped by their parents they need to think about how the bank of Mum and Dad is going to be repaid. If the money is a gift, the parents might want their money to remain with their child.”
“It is very sensible – the peace of mind is well worthwhile,” added Francesca.
WHERE CAN I GET A LIVING TOGETHER/PRE-NUP AGREEMENT?
Ashtons Legal offers a full range of legal services to business and individuals from its offices in Norwich, Cambridge, Ipswich, Bury St Edmunds and Thetford. www.ashtonslegal.co.uk