Same sex couples and prenups

Civil partnership for same sex couples was introduced in 2005, followed by gay marriage in 2014.  Since then I have prepared numerous prenups (or pre-cips) and my clients really understand the importance to the relationship of examining attitudes to finance, family wealth, debt, health and children from a position of romantic love.  The troubles begin when that feeling fades and certainty of outcome is a comfort for separating couples.

Doing this thoroughly and with honesty is form of pre-marriage counselling which can even lead to a decision not to marry and has done in at least two cases that I can recall.

What originally made the popularity of same sex marriages rather different was the fact that these frequently involved couples who had already established their relationship, complete with financial assets.  These couples were not immune to divorce but were keen to negotiate prenuptial agreements to avoid the errors which divorcing couples had encountered over many years.

The prenup process involves exploring the following:-

• Separating property
• Debts
• Estate planning
• Rules and conventions regarding finances during the marriage
• What happens to inheritances and how a gift is treated
• What happens to the family business
• Dispute resolution process options such as mediation

Recent examples

1. Acting for a successful author who was planning to marry her partner, an artist.  Most of the assets, including the home in which they lived, had been funded by the author and she had also acquired investment properties.  The prenup focussed on her partner’s housing needs if the marriage ended.  They had already been together for six years and it was agreed that their main home would be transferred into joint names, initially in unequal shares.  However, her partner would acquire a 50% interest on the anniversary of the fourth year of their marriage.
2. Acting for a man who was seeking to protect his shareholding in a family business which he co-owned with his father and brother.  He intended to enter into a civil partnership with a younger man and asked us to draft a prenup to protect his assets.  We worked closely with his partner’s solicitors to agree an outcome which would be enforceable if the civil partnership was dissolved.

Jurisdiction/international issues

Prenups are popular and generally binding in other countries.  There are many foreign nationals living in London who are now divorcing here.  It is extremely important to ensure that a prenup is binding in whichever jurisdiction deals with the divorce.  It is standard practice to ensure that prenups include jurisdiction clauses which identify the jurisdiction of primary choice in the event of divorce.  Different jurisdictions produce different outcomes, and this usually involves the employment of a specialist international family lawyer in each jurisdiction so that the prenup is “mirrored” and certificated by the lawyer in each jurisdiction.

For further information contact Kim Beatson: kim.beatson@anthonygold.co.uk 020 7940 4000

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*