Same sex couples and pre-nups
Civil partnerships for same sex couples was introduced in 2005, followed by gay marriage in 2014. Since then I have prepared numerous pre-nups and my clients really understand the importance of these agreements and 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 comforting feeling for separating couples.
Doing this thoroughly and with honesty is a form of pre-marriage counselling which really examines the meaning of marriage vows. It could even lead to a decision not to marry and has done so in at least two cases I can recall.
What 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, good and bad. These couples were, of course, not immune to divorce but were very keen to negotiate pre-nuptial agreements, perhaps to avoid the errors which divorcing couples have encountered over many years.
The process involves exploring the following:-
- Separating property
- How to deal with debts
- Estate planning
- Establishing rules and conventions regarding finances during the marriage
- What happens to inheritances and how are gifts treated
- What happens to the family business
- Avoiding conflict on divorce by opting for mediation firs
It has been interesting to explore attitudes to child support and potential parenting arrangements. Equally, it has been interesting to explore jurisdiction issues – how relocation might affect employment prospects and income and whether this should be factored into the potential outcome in the event of divorce.
Recent examples
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 pre-nup focused 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, with the partner acquiring a 50% interest on the anniversary of the fourth year of the marriage. We also arrange Wills to secure a financial provision in the event of death.
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 agreement with a younger man and asked us to draft a pre-CIP to protect his assets. We worked closely with his partner’s solicitors to agree on an outcome which would be enforceable if the partnership was dissolved.
Jurisdiction and International issues
Pre-nups 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 pre-nup is binding in whichever jurisdiction deals with the divorce. It is, therefore, standard practice to ensure that pre-nups include jurisdiction clauses which identify the jurisdiction of primary choice in the event of divorce because different jurisdictions produce different outcomes. If there is a possibility of living in or acquiring assets in more than one jurisdiction, it is important that the parties agree on a document which is internationally binding and enforceable. This usually involves the employment of specialist international family lawyers in each jurisdiction so that a pre-nup is “mirrored” and certificated by the lawyer in each jurisdiction.
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