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Same sex marriage and Pre-Nuptial Agreements

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Same sex weddings have been taking place since 29 March 2014, following the enactment of the Marriage (Same Sex Couples) Act 2013.

Civil partners can apply to convert their civil partnership into a marriage and it may be attractive to do so for two reasons:

  • Given one or two minor differences, there is now near equality between same sex and opposite sex marriages; and

  • The £45 fee for converting from a civil partnership to a same sex marriage is waived if the civil partnership took place before 29 March 2014 and conversion happens by 9 December 2015.

While there has been significant media coverage of same sex marriages, particularly where news of them has included celebrities, one important area of same sex wedding planning should be considered, namely the Pre-Nuptial Agreement.

In the early days of the new law there will be some same sex marriages where the couples are already established in life, and who carry with them significant personal assets. Many may have been a couple for years, and as individuals have a successful career, significant assets and property equity. Same sex marriages are not immune to divorce, and as one commentator put it, why until recently has it been the preserve of married heterosexuals to be miserable in a divorce!

A Pre-Nuptial Agreement (Pre-Nup), should be considered by all couples looking to marry. It is worth thinking about a Pre-Nup in the same way as life or critical illness insurance. It is something that you hope you will never need, but it is there to protect you or your family if the worst happens. In February 2014 the Law Commission recommended that nuptial agreements should be binding, known as Qualifying Nuptial Agreements. They also set out guidelines including that legal advice should be taken by both parties and the agreement should be signed at least 28 days before the wedding.

If your same sex marriage does break down at a later stage, the agreement may minimise the distress and expense at that point. We would therefore recommend that you contact us at least three or four months prior to the ceremony to allow sufficient time for negotiations prior to the agreement being finalised, and ideally as soon as you decide to marry.