Guide to post-civil partnership agreements
Vardags made history in 2010 as the landslide victors in the Supreme Court case of Radmacher v Granatino which changed the law on prenuptial agreements in England and Wales so that they are now enforceable unless unfair. In this case it was also held that agreements reached after the date of the marriage known as postnuptial agreements carry identical weight through the courts. It has therefore become increasingly common for parties to formalise their financial arrangements and promises to each other after their marriage to allow them a greater level of certainty and autonomy in the event of permanent separation or divorce. These agreements, together with pre-civil partnership agreements, should be frequently reviewed with the benefit of legal advice throughout the civil partnership in order to ensure that they remain fair in the parties’ changing circumstances. Pre-civil partnership agreements and post-civil partnership agreements are commonly reviewed upon the occurrence of significant events such as the birth of a child, one party’s retirement, a fundamental change to the relationship or a shift in either party’s financial circumstances or if a pre-civil partnership agreement cannot be prepared in good time before the civil partnership ceremony.
The case of Radmacher v Granatino in the Supreme Court confirmed that post-civil partnership agreements are as enforceable as pre-civil partnership agreements. You can therefore expect that a post-civil partnership agreement duly executed with legal advice on both sides and with full financial disclosure to be upheld by the courts provided that the agreement remains fair in the circumstances at the date of enforcement. The Supreme Court did not define the term “unfair” but, as the case law in this area has developed, fairness is interpreted as meeting the parties’ reasonable needs. These needs can be restricted by a post-civil partnership agreement. It is important to ensure that it remains fair in light of the parties’ changing circumstances. Your post-civil partnership agreement may involve maintenance or provision of a home on trust while children are growing up.
The discretion of the courts has not been ousted altogether (and in particular the court has jurisdiction to make provision for children, which cannot be ousted). However, the Supreme Court has gone a long way to redress the balance of power between the people and the courts by allowing people autonomy to make decisions in respect of their own finances in the event of the dissolution of a civil partnership. This is an extremely valuable change to the law of England and Wales and has brought us closer in line with many other countries where post-civil partnesrhip agreements are already binding, and in some cases, have been for many years.
If you are interested in discussing a post-civil partnership agreement please see How Vardags can help with post-civil partnership agreements.