Legal advice from David Berridge, specialist Family Law Solicitor, based in Leicester:
Q: Is a pre-nuptial agreement legally binding?
A: Although they are not legally binding as such, recent case law has made it clear that if these agreements are fair and properly entered into, then a court is likely to give a large amount of weight to the agreement. However, it is really important to keep pre-nuptial agreements under review, especially if there has been a major change in circumstances such as starting a family, which could drastically alter what each party’s needs could be in the future.
Q: Does it matter how soon before the marriage it is that I enter into a pre-nuptial agreement?
A: Whilst there is no time limit to have a pre-nup agreed and signed prior to a marriage, it would be best to have this sorted at least 3 weeks before the marriage takes place, to avoid any claim by one party against another that the document was signed under duress.
Q: Is it too late to enter into an agreement after I’ve got married?
A: No, this would be called a post-nuptial agreement and much like a pre-nuptial agreement it would detail how financial matters would be resolved, should the marriage come to an end. These agreements are also used to amend existing pre-nuptial agreements after the marriage has taken place.
Q: What gets taken into account if my marriage should end?
A: Whilst any factor considered to be relevant will be taken into account in the event of divorce proceedings, particular areas that a court will take into consideration are: the needs of any children, especially if they are minors; length of marriage; the earning capacities of each party; maintaining standards of living and individual needs; for example having somewhere to live.
Q: If the children continue to live with me following a separation, what would I need to do to obtain child support?
A: You could either come to your own arrangement with your spouse/ex-spouse, or alternatively, an application would need to be made to the new Child Maintenance Service (CMS), which has replaced the Child Support Agency (CSA). However, the CMS will apply penalties if you do go through them (typically an additional 20% monthly payment on top of child support for the payer, whereas the payee will lose 4% of their maintenance each month). It is therefore often best to agree an amount of child support with your spouse, which can be calculated using the CMS’ formula, found on their website.
Q: What maintenance can I claim for myself?
A: Spousal maintenance can be sought over and above child support. This would very much depend on the financial circumstances of the payer and their ability to be able to make such payments. However, regardless of how much this would be, it would only automatically come to an end upon the death of either party, or upon the payee’s re-marriage.
Q: Is claiming maintenance for myself any different whether we are married or un-married?
A: Yes, completely. It doesn’t matter how long you are together for, you can’t make the same claims that you would be able to if you were married. If un-married, under no circumstances can you claim maintenance for yourself. However the position for maintenance for children is exactly the same whether you are married or not.
Q: Does anything change if the payer is male or female?
A: No, there is absolutely no difference in child support or spousal support if the payer is male or female.
Q: Can I make a claim against my partner if I have lived with them for longer than 6 months?
A: No – there is no such thing as a common-law husband or wife and so contrary to popular belief; there is no law of cohabitation. There is therefore a significant difference when dealing with financial matters between a married couple and an un-married couple.
Q: I’m not ready to get married but am considering living with my partner. Is there a legal agreement which would cover financial terms between us?
A: Yes, you could enter into a written cohabitation agreement, specifying any aspect of living with a partner that you wish. These usually cover financial terms such as bills and housing arrangements; particularly any property rights, but can include anything up to who does the washing up!
Ask for family law advice
Most of these issues involve complicated legal documents, so to ensure that they are as effective as possible, you should ensure that any documents and agreements are drafted by a specialist family solicitor, with each party seeking their own individual advice.
David Berridge is an accredited member of the Law Society’s Family Scheme and has been a qualified solicitor since 1990. Specialising in Family Law for 25 years, David is Head of Department at Bray & Bray Solicitors in Leicester, where he has been a partner since 1998. You can contact David on email email@example.com.
Alternatively, we have three main offices across Leicestershire. Feel free to pop in and talk to our solicitors at your local office.