Isn’t a relationship agreement a bit, well, unromantic? No, not at all. Thinking ahead to your new life together is the most romantic part of a new relationship, putting your plans in writing is just common sense. Remember, there is a lot more to living together than what happens when you stop! Working out how you deal with finances and household arrangements together will make sure there are no unwelcome surprises, once you have taken the plunge.
Why are relationship agreements necessary?
When people get married, the law says that they must look after each other, financially at least, while they are married, and the law also sets out largely what should happen when a marriage breaks down, frequently an equal sharing of the couple’s assets.
However, not everyone may wish to marry, or be able to, and yet may still want to have some certainty about who pays for what, and who does what within their relationship. It can also be helpful to decide at the beginning, when you are still talking to each other, what will happen if the relationship breaks down. Leaving it until you are angry with each other, at the end, can just make matters worse. A cohabitation agreement can help with this.
Other people may feel that although they are going to get married, they would like to have a pre-nuptial agreement, which can be really helpful if there is divorce or separation in the future. Pre-nuptial agreements are especially important if the parties already have children from other relationships when they agree to marry or have inherited assets they wish to pass on to their children.
A cohabitation agreement is a binding contract as the couple do not come within the discretion of the Matrimonial Causes (Jersey) Law 1949. Although pre-nuptial agreements are not completely binding, the courts are taking much more account of them, especially if the marriage is short and there are no children. As long as both parties have had independent legal advice about the agreement, there has been full disclosure of the assets, the parties have each been advised as to the consequences of entering or not entering into the agreement and it is signed at least 3 but preferably 6 weeks before the wedding or civil partnership the Family Court in Jersey is likely to hold the couple to their bargain.
Who would benefit from having a relationship contract?
Couples who live together as partners;
Couples intending to marry, especially if it is a second marriage;
Couples intending to enter into a civil partnership;
Couples who are already married but have had a change in their circumstances such as one party having inherited assets, joined a partnership, become a beneficiary of a trust or become a director and shareholder of a company;
Couples who are going through a difficult time in their relationship and are contemplating divorce but would like to hold open the possibility of reconciliation. In such cases a “Reconciliation Agreement” can help to reassure the spouse who wishes to leave the relationship that they would be provided for if the marriage fails. Often this level of reassurance can be enough to shore up the marriage and enable the couple to rekindle their relationship safe in the knowledge that they both know what would happen if they did split up. A kind of relationship insurance policy.
What kind of things can a relationship agreement include?
A relationship agreement can:
- determine what happens to your assets and those of your partner if the relationship breaks down;
- determine under which jurisdiction any disputes will be dealt with;
- specify financial and other arrangements while you live together;
How are relationship agreements created?
Whenever anyone enters into a relationship agreement, they must have had independent legal advice. If either party has not had independent legal advice that is likely to make any agreement unenforceable.
However, just because both parties need to have separate advice does not mean that the making of the agreement needs to be confrontational. There are several ways in which agreements can be prepared, the best ways being through mediation or collaborative law.
Contrats du mariage
In Jersey, unlike in the UK, there is an element of “forced heirship”. This means that there are some limitations on who you can leave property to in your will. Dower is the right of a surviving spouse to have a life interest in a third of the immoveable (or real) property of the deceased spouse and légitime is the right of a surviving spouse and children to a share in the moveable estate of the deceased spouse. There may be occasions when the couple agree that these customary law rules should not apply to them. In those circumstances, as a pre-nuptial agreement cannot bind a third party, the way to deal with the matter is by the parties entering into a contrat du mariage before the wedding. In this way the couple can waive some or all of their customary law rights.