Agreements

Frequently asked questions

When do I need an agreement?

There are numerous circumstances in which a properly considered and prepared agreement will be of considerable assistance. The following are just some examples where an agreement may assist you.

• If you intend to live with someone then an agreement can assist in protecting pre-owned assets and setting out each party’s respective rights in relation to property and financial issues
• If you intend to marry then a pre and/or post-nuptial agreement can assist in setting out how you and your spouse/future spouse would wish to deal with the assets of the marriage, financial matters and arrangements for any children in the unfortunate event that the marriage breaks down. The courts are increasingly taking account of properly considered and prepared agreements when dealing with financial issues on divorce
• If you are in a relationship and that relationship has broken down then an agreement can set out how any assets are to be divided and how any other financial issues or even arrangements for children are to be resolved
• It is often particularly important to consider the implications of your partner moving in with you in circumstances where they are moving into a property which you are the sole owner of. An agreement can define what interest, if any, your partner would acquire in the property and if, for example they were going to make financial contributions towards the property
• If you are buying a property with your partner then it is important to consider how that property will be owned jointly. Particularly careful consideration will need to be given to the ownership of the property if you and your partner are making unequal contributions towards the purchase price. An agreement can define yours and your partner’s respective interests in the property, and what your shares will be in the event that the relationship breaks down.

Will the agreement definitely be effective?

The law in this country is always evolving. Following developments in the law in recent years, agreements now carry more weight with the court than at any time previously. Pre and post-nuptial agreements have increasingly been taken account of by the courts in just the last few years. If an agreement is in place then the courts will now consider why that agreement should not be upheld.

It is, however, important to be aware that ultimately an agreement cannot prevent a party from asking the court to consider a matter they do not wish to be held to the terms of a written agreement. Ultimately, it is at the court’s discretion as to whether an agreement should be upheld.

When might the Court not uphold an agreement?

The court may not hold the parties to the terms of an agreement where the terms of that agreement are deemed to be unfair, if the terms of the agreement are considered out of date or if provisions in the agreement do not make adequate provision for a child of the relationship.

An agreement may also not be upheld if it can be established that a party to the agreement was not in a position to make a fully informed decision when entering into it. An example of this would be a financial agreement where there had not been full disclosure of each party’s financial circumstances prior to entering into it.

In addition if the proper legal formalities have not been properly dealt with then again the agreement may not be upheld.

There are therefore clearly a number of reasons as to why it is important to obtain specialist legal advice when consider entering into an agreement.

What if the other person does not want to enter into the agreement?

The other person must be prepared to enter into the agreement. If they are reluctant to enter into an agreement, or not willing to do so then it is probably better to reassess your position and consider how you wish to proceed.

How long will the agreement take?

We can draw up an agreement very quickly, where this is required. It is very important however not to rush into an agreement, the priority should be to ensure that the terms of the agreement are appropriate and effective.

In the case of a pre-nuptial agreement we would generally advise that the agreement should be executed 3 months prior to the date of the marriage. It should certainly not be executed any later than 21 days prior to the marriage.

Why do I need a Parental Responsibility Agreement?

Parental responsibility entitles you to have an equal say with regard to all important decisions concerning your child, such as issues concerning their education, religious upbringing, authorisation of medical treatment and change of a child’s name.

Therefore if you do not have parental responsibility, technically the child’s mother and all other persons with parental responsibility do not need to consult you with regard to important decisions concerning your child.

A Parental Responsibility Agreement will ensure that you have an equal say concerning all important decisions concerning your child. If you do not have parental responsibility and the child’s mother is unwilling to enter into a Parental Responsibility Agreement with you, you can make an application to the court for a Parental Responsibility Order. Generally, providing you can show the Court commitment to your child then an application for a Parental Responsibility Order will be successful.