Marital and civil partnership agreements—drafting and formalities

The following Family practice note provides comprehensive and up to date legal information covering:

  • Marital and civil partnership agreements—drafting and formalities
  • Validity
  • Vitiating factors
  • Drafting
  • Inheritance issues
  • Reviews and variation

Marital and civil partnership agreements—drafting and formalities

Following the Supreme Court decision in Radmacher (formerly Granatino) v Granatino, a marital or civil partnership agreement may be 'decisive' provided it is 'fair'. The approach to the drafting and formalities attendant upon a marital or civil partnership agreement will be significant as to whether the agreement will be upheld.

A party should not enter into an agreement unless they intend to be bound by it. Both parties should have the opportunity to take independent legal advice as to the terms of the agreement, see Practice Note: Marital and civil partnership agreements—independent legal advice. Full financial disclosure should also be exchanged, see Practice Note: Marital and civil partnership agreements—disclosure.

See also Practice Notes: Implications of pre-nuptial agreements within proceedings for financial provision and Implications of maintenance, separation and post-nuptial agreements within proceedings for financial provision for analysis of the decision in Radmacher and case law examples of how the courts approach marital and civil partnership agreements in the event of a dispute.

Validity

In order to give parties all possible enforcement options, including civil remedies for breach of contract, agreements should conform to the ordinary requirements of a contract, eg offer, acceptance, consideration and intention to create legal relations. Particular attention should be paid to the following:

  1. the parties should execute the agreement as a deed to avoid the problem of

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