ENGLAND & WALES Law and Practice Contributed by: Jeremy Levison, Miranda Green and Alexander Bartlett, Levison Meltzer Pigott
• each party must enter into it of their own free will without any undue influence; • each party should have the benefit of legal advice and the necessary financial disclosure to inform their decision; and • the effect of a nuptial agreement should not be to leave either party in a predicament of real need. In February 2014, the Law Commission published a report in which it recommended that Parliament should legislate the use of nuptial agreements. The recommendations were broadly a codification of the case law which had developed since the Radmacher case. Provided it did not represent a total abdication of responsibility to meet a party’s financial needs, the report recommended that a nuptial agreement should be enforceable provided that, in addition to the above elements, it must: • contain a statement signed by both parties stating that they understand the court’s discretion will be largely removed; and • be made at least 28 days prior to the wedding. It is perhaps surprising that the position on nuptial agreements remains a matter of judge-made law and not statute. In any event, practitioners would be wise to ensure that the above elements are taken into account in any agreements. 2.6 Cohabitation: Division of Assets Between Unmarried Couples Approach to Separation in Unmarried Couples The court’s approach to the division of assets between unmarried couples is significantly more limited, par ‑ ticularly in the absence of children. Unlike other juris ‑ dictions, there is no concept of “common law mar ‑ riage” or any other protective financial regime which springs into existence upon the parties cohabiting or taking joint financial decisions. An unmarried party is, broadly speaking, limited to the same claims which anybody would have against • be a valid contract; • be made by deed;
another person, whether they were in a romantic rela ‑ tionship with them or not. Capital Assets Save as set out below, the court’s involvement is lim ‑ ited to the clarification of pre-existing property rights. A party can apply to the court if an agreement can ‑ not be reached as to who owns what proportions of a property. A common example is when one person has purchased a property in their sole legal name, and their partner later occupies that property and con ‑ tributes to it financially. Has that person acquired a financial stake in that property? The principles which apply are the same ones that would be invoked between a parent and their children, or indeed between friends, where one had made con ‑ tributions to the other’s property. In the absence of an express agreement, the primary question is whether or not the parties had a common intention that the contributor would acquire an interest. It is important to note that the mere fact of someone’s occupation, or indeed their financial vulnerability as a result of decisions taken jointly, does not give rise to rights of If there are children of the relationship, then a party is able to bring claims on behalf of a child: for child main ‑ tenance and limited claims in connection with capital. These applications are known as a Schedule 1 Appli ‑ cation because they arise primarily out of Schedule 1 to the Children Act 1989. The main limitation on capital claims is the way in which the courts approach housing: given that provi ‑ sion is being made for the benefit of the child and not the parent, an order is generally made on a reversion ‑ ary basis. A party may be ordered to purchase a home for the other party and their child to live in, and indeed to contribute to the property’s running costs, but the benefit of that property will revert to the payer upon the child’s maturity. ownership absent other factors. Children in Unmarried Couples Courts can order a party to make further capital provi ‑ sion, but again through the lens of benefiting the child. Although this has been interpreted broadly to include provision for such things as home furnishings or cars,
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