Whilst they are certainly not the most romantic conversations to have during a relationship, it is always sensible to consider whether you and your partner need to put in place some form of an agreement to record what you want to happen to your finances both during the relationship and if the relationship were to come to an end. There are a number of different documents you could consider using to record such an agreement and much depends on the status of your relationship and your future plans with one another (for example, are you buying a property together or do you plan to get married).
Some of the key documents you may wish to consider include:
Declarations of trust
The ownership of a property can be a complex matter. This is because the names in which a property is held reflects the 'legal' ownership but this can be different from the 'beneficial' ownership which dictates who has a financial interest in the property.
To avoid disputes about property ownership whether between cohabiting couples or co-owners, a declaration of trust can be entered into to record how a property is owned.
A declaration of trust is a legally binding document that sets out how the beneficial interest in a property is held. The document can be very flexible and used to record other matters such as who is to pay the utility bills, who is to live at the property and what happens if one party wants to sell the property. A similar document can also be prepared where one party is moving into their partner’s property but they will have no financial interest in the property itself (this is known as a declaration of no interest).
When entering into a declaration of trust each party should seek independent legal advice before it is signed and ensure that it is executed properly. It is also worth noting that if you subsequently marry, a declaration of trust is not necessarily binding and in those circumstances, you may want to consider entering into a pre or post-nuptial agreement as mentioned below.
Without a declaration of trust, if a dispute cannot be agreed upon, it is likely that the court will need to determine how the property is owned and this can involve complex and often very costly litigation.
Despite calls for reform of the law, at present, cohabiting couples in England and Wales do not automatically have rights akin to that of a married couple or couples in a civil partnership. There is no such thing as a “common law marriage”. This means that upon separation, other than claims in relation to a beneficial interest in a property or claims relating specifically to children, a cohabiting couple do not benefit from financial claims against one another as a result of the breakdown of their relationship.
Cohabiting couples may choose therefore to enter into a document known as a cohabitation agreement. The agreement can record financial arrangements during a relationship and what should happen if you were to separate. This can include matters relating to property or other assets, financial rights and responsibilities towards one another and provision for children.
In order to ensure a cohabitation agreement carries as much weight as possible and is treated as an enforceable document should it be tested in the future, each party should take independent legal advice, provide full disclosure of their financial circumstances and enter into the agreement freely. It is also very important that the document has been properly executed.
A pre-nuptial agreement is entered into by a couple prior to a marriage or civil partnership and is used to set out their intentions in relation to their finances during their relationship and what they wish to happen should their relationship break down. It is essentially a financial planning exercise for a couple to prepare for their relationship or significant changes during it.
Pre-nuptial agreements are not binding on the courts in England and Wales. This is because the court retains the power to vary the terms following a separation if it is considered necessary to do so. That said, the court will usually uphold pre-nuptial agreements if a number of safeguards are met when the agreement is signed. This includes:
- the agreement being freely entered into by both parties (i.e. no duress when signing)
- both parties having an appreciation of the implications of entering into the agreement (this includes obtaining legal advice and exchanging financial disclosure)
- the terms of the agreement being fair and meeting the financial needs of each party
A post-nuptial agreement is essentially the same document as a pre-nuptial agreement the only difference being that you enter into the document after you are married or have entered into a civil partnership. As such, they are commonly entered into as part of inheritance or tax planning, or when a couple wishes to review their financial position and how they manage assets going forward and in the event they were to separate at a later date. Such agreements can therefore offer clarity about the financial position during a marriage or civil partnership and what will happen if efforts to maintain a marriage or civil partnership do not succeed.
The intention of these types of documents is not to cause tensions in a relationship but rather to provide some reassurance if the relationship ever were to end and indeed, the hope is that they can be filed away in the back of a cupboard. All of the documents can therefore be very flexible and tailored entirely to what a particular couple wishes to achieve in relation to their finances and specific circumstances.