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Rise in same sex pre-nups predicted

THE use of pre-nuptial agreements looks set to continue rising with the arrival of same sex marriage, according to a leading law firm.

Matrimonial and family law experts at Ward Hadaway are already reporting a rise in demand from clients for pre-nuptial agreements following on from recent developments which have strengthened the standing of pre-nuptial agreements in English law.

Now with the legalization of same sex marriage with the arrival of the Marriage (Same Sex Couples) Act 2013, the law firm says that more couples are likely to want to arrange their financial affairs before committing to marriage.

Jonathan Flower, Partner and head of the Family Law team at Ward Hadaway, said: “Legally, there are some differences on the breakdown of a same sex marriage as opposed to a heterosexual marriage.

“For example, same sex spouses cannot cite adultery as a reason for divorce although they can get round this by petitioning on the basis of unreasonable behaviour and make reference to an ‘inappropriate relationship’ with another person.

“However, despite these small differences, the court has the same powers to order maintenance and provide for the division of assets as it does on the breakdown of a heterosexual marriage and on the dissolution of a civil partnership.

“Same sex couples entering into either a civil partnership or a marriage should be aware that the court has wide-ranging powers to redistribute assets and order maintenance on dissolution or divorce.

“It is very easy for different Judges to come to a different solution on the same set of facts, which means for parties getting divorced the outcome is uncertain.”

A shared desire to reduce such uncertainty and a change in the way that pre-nuptial agreements are viewed has led to a rise in ‘pre-nups’.

A pre-nuptial agreement is a contract entered in to by a couple prior to marriage which sets out how they intend to regulate their financial positions in the event of a divorce.

Whilst pre-nups are not automatically binding on the court, provided an agreement is entered into fairly and both parties have had the opportunity to consult a lawyer before signing it, the Supreme Court has ruled that they should be upheld and only departed from in limited circumstances.

Jonathan Flower said: “This ruling has strengthened the standing of pre-nuptial agreements and has made more people consider what was previously if erroneously regarded as something only for the rich.

“Given the uncertainty and stress of ending a marriage through the courts, even on cases with smaller assets, it is little wonder that pre-nups are rising in popularity.

“We have certainly seen an increase in the number of clients looking to put in place pre-nuptial or pre-partnership agreements and I think there is no reason why same sex partners won’t be considering pre-nups before their marriage or civil partnership.

“It may not seem the most romantic thing in the world, but a pre-nuptial agreement can save a lot of heartache and expense in the event of a relationship ending.”

* Find out more about our advice on pre-nuptial agreements.