The no nup, for when there are no nuptials02 Oct, 2020 - Divorce and Family | by Grosvenor Law
First, we had prenuptial agreements, then followed post-nuptial agreements. Now we have the rise of the no-nup.
So what exactly is a no-nup?
The term stands for a no-nuptial agreement and is ideal for couples who have no intention of planning a wedding imminently or at all (“no-nuptials”).
The no-nup has seen an increase in press coverage in recent months and it has been widely heralded as an apparatus for unmarried, cohabiting couples to agree how their finances, property, children, and other arrangements should be dealt with in the event of a future separation.
Why is a no-nup important?
There is a common misconception about cohabiting couples; often they believe that if they live together, they acquire the same legal rights as they would had they married. That is not the case.
The concept of a “common-law spouse” does not exist in English law. Upon the breakdown of a marriage, the court has the power to order the payment of a lump sum, order the sale or transfer of one party’s property, order spousal maintenance, order a pension share, and award child maintenance to a party. The same rights are not afforded to cohabiting couples and the hurdles the financially weaker party has to jump in order to be afforded some form of financial relief are a lot higher.
Clarity on this issue is therefore of particular importance given the growing trend of cohabiting families – according to the Office of National Statistics this is now the fastest-growing family type, up 25.8% over the decade. If therefore, you are in one of the relationships that make up this statistic, it is only sensible to protect your assets in the form of a no-nup.
What can or should a no-nup include
The most common use for a no-nup is to protect the largest asset that one will often own – their home.
One party may be moving into a property that the other owns solely, or alternatively, couples who own the property together may wish to have their differing contributions recorded in a document to save a dispute in the future. No-nups can be used to record the party’s legal and beneficial interest in a property and how the net proceeds of sale should be distributed upon sale. Alternatively, they can be used to exclude one party from obtaining a beneficial interest in a property. Often these types of agreements are used in conjunction with a declaration of trust where the parties beneficial interests differ from the legal interests recorded on the property’s title. The main purpose is to prevent a disagreement in the event the relationship breaks down and there is a dispute about the contributions that each party made towards the acquisition or improvement of the property.
The agreement could also record that the non-owning partner only has a license to occupy the property; which would require them to vacate the property should the relationship breakdown.
No-nups can be used to guard other types of property such as artwork, cars, jewellery, and any other items of significant value that one or both parties own. Commonly, these agreements can also often detail how money held in joint accounts shall be treated by the parties during the relationship and upon the breakdown of that relationship and how the debt of either party should be treated.
More obscure aspects of the couple’s personal lives can also be documented. You may be surprised to know that the ownership of pets is frequently recorded in these documents. Whilst it may seem trivial to some, couples have fought expensive legal battles over the ownership of their pets once the relationship has ended.
One of the more remarkable clauses that practitioners are being asked to include is the way in which the couples split will be announced over social media to friends and family.
What are the legal requirements?
To have a valid no-nup agreement, both parties need to seek independent legal advice and should provide to one another full and frank financial disclosure. This is to ensure that one party cannot claim that they entered into the agreement based on misrepresentation. The family team at Grosvenor Law are well versed in drafting these types of agreements.
James Broomhall is an associate in Grosvenor Law’s family team, where he advises on all areas of private family law. Contact James Broomhall to speak to about how these agreements could benefit you.
The contents of our blog posts do not constitute legal advice and are provided for general information purposes only