Post-Civil Partnership Agreements

What a Post-Civil Partnership Agreement Does

A post-civil partnership agreement is made between two people who are already civil partners. It records what each of you owns, what should stay separate and what should be shared, and how the home, savings, pensions and any business would be dealt with if the partnership were dissolved. It is the civil partnership equivalent of a postnuptial agreement, and the counterpart of a pre-civil partnership agreement signed before the registration.

Opposite-sex couples have been eligible to form a civil partnership in England and Wales since 2 December 2019, so these agreements are open to same-sex and opposite-sex civil partners alike.

The Weight the Court Gives an Agreement

If a civil partnership ends, the court decides financial claims under Schedule 5 to the Civil Partnership Act 2004, which section 72(1) says corresponds to the divorce provisions in Part 2 of the Matrimonial Causes Act 1973. Paragraph 20 requires the court to have regard to all the circumstances of the case, giving first consideration to the welfare of any child of the family under 18, and paragraph 21 lists particular matters, among them each partner's resources, needs and contributions, including caring for the family.

An agreement is one of those circumstances, and the leading case is Radmacher v Granatino. The Supreme Court held that the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement. It said the same principles apply to an agreement made after the ceremony as to one made before it, and that the parties cannot, by agreement, oust the jurisdiction of the court.

Radmacher concerned a marriage, and there is no Supreme Court decision on an agreement between civil partners. The same approach is expected, because Schedule 5 corresponds to the 1973 Act and the Law Commission found no legal differences between marriage and civil partnership in this area, but expected is not the same as settled.

Two points from the judgment matter most to an agreement made during the partnership. The court should respect a couple's own decision about their finances, particularly where the agreement addresses existing circumstances rather than only the contingencies of an uncertain future. And of the three strands of fairness, need and compensation can most readily make it unfair to hold you to the agreement, while the court is most likely to follow it on sharing: an agreement that leaves one of you in real need, or ignores years spent caring for the family while the other built up wealth, is the one most likely to be departed from.

Maintenance Agreements Under Schedule 5

Part 13 of Schedule 5 adds rules of its own. Paragraph 67 defines a maintenance agreement as any written agreement between civil partners, made during the partnership or after it ends, containing financial arrangements: provisions on payments or the use of property when the partners live separately, including the maintenance or education of a child. On its wording that can include a written post-civil partnership agreement, and where it does paragraphs 68 and 69 provide that:

• A provision purporting to restrict either partner's right to apply to a court for an order containing financial arrangements is void.
• The other financial arrangements are not void as a result and, unless void or unenforceable for some other reason, are binding on the two of you, subject to the court's power to alter them.
• Either of you may apply to alter the agreement while it subsists, if both of you are domiciled or resident in England and Wales, where circumstances have changed (even a change you foresaw) or it makes no proper financial arrangements for a child of the family.
• Nothing in these paragraphs affects the court's own powers on dissolution, or either partner's right to apply for an order, so the agreement does not bind the court.

One caveat. In Radmacher the Supreme Court questioned whether the equivalent sections of the 1973 Act reach every agreement made during a marriage, or only an agreement made to separate, and left the point open. Schedule 5 mirrors those sections, so the same question hangs over paragraphs 67 to 69. We draft on the footing that they may apply.

Children are treated separately. The welfare of any child of the family under 18 is the court's first consideration, and the Supreme Court held that a nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family. Our child maintenance page explains the options.

Evidence and Common Problems

When an agreement is challenged, the court looks first at the circumstances in which it was signed. Drawing on Radmacher, it asks whether:

• Each of you entered into it of your own free will, without undue influence or pressure, and informed of its implications
• There was any material lack of disclosure, information or advice; the Supreme Court called sound legal advice obviously desirable
• Each of you intended the agreement to govern the financial consequences of the partnership ending
• Duress, fraud or misrepresentation was present, which negates any effect, or undue pressure short of duress or exploitation of a dominant position, which reduces or removes its weight
• Your emotional state, age and maturity, and any earlier relationships, explain the terms and what you foresaw
• The terms were unfair from the start

Agreements made during a relationship raise problems of their own. The Supreme Court reviewed a case in which a husband pressed an agreement on his wife as the price of the marriage continuing, and the judge set it aside for undue influence. A draft produced by one partner's solicitor with no advice to the other, disclosure that leaves out a pension or a company interest, and terms that would leave one of you unable to meet your needs after years of caring for children are the other common flaws. We can review an agreement you have already signed.

Where either of you, or your assets, are connected with another country, the agreement has to work in two legal systems: see cross-border agreements.

How the Process Works

1. Free 15-minute consultation. You tell us what you want to protect and what each of you owns, and we explain what weight an agreement signed now is likely to carry.
2. Disclosure. Both of you set out assets, income, pensions and debts, with valuations where needed, and we prepare the schedule.
3. Terms. We settle what stays separate, what is shared, how the home is dealt with, how needs and any children are provided for, and what happens on a conversion into marriage.
4. Independent advice. Your partner instructs their own solicitor, and each of you takes advice before signing; we act for one of you only.
5. Signing. The agreement is executed as a deed, recording the disclosure each of you saw and the advice each of you took; with no registration date looming, there is no reason to rush.
6. Review. We diarise a review for a child, a move, an inheritance or a sale, and update the agreement when circumstances change.

If the partnership later ends and you both still accept the terms, we ask the court to record them in a consent order, which GOV.UK says a judge approves if they think it is fair. If one of you disputes the agreement, its weight is decided in financial remedy proceedings. Ending the partnership itself is covered on our civil partnership dissolution page.

When Legal Advice Is Especially Important

Early advice matters most where:

• You are being asked to sign to keep the partnership together, or to sign quickly
• One of you has much more than the other, or has given up work to care for children
• A family business, a farm or a trust is involved and other relatives have an interest
• The agreement is meant to settle whether either of you would pay maintenance to the other or share a pension; see our pensions on separation page
• You are same-sex civil partners thinking of converting the partnership into a marriage

If you feel pressured into signing, take your own advice first. In immediate danger call 999, and the National Domestic Abuse Helpline is on 0808 2000 247; our domestic abuse injunctions page explains the orders a court can make. If your right to be in the UK depends on your partner, our civil partner visa page covers the immigration side.

If you are already parting, a separation agreement is the document for a couple who have decided to live apart, and our money and property pages explain how the court divides finances without an agreement.

How RakLAW Solicitors Can Help

RakLAW Solicitors is authorised and regulated by the Solicitors Regulation Authority, SRA number 8007405, and was founded by solicitor Rakesh Prajapati. Our office is at 42 Shad Thames in Southwark, a short walk from Tower Bridge.

We draft post-civil partnership agreements, advise on a draft your partner's solicitor has produced, and review nuptial agreements made here or abroad. If an agreement is ever tested we advise on its weight and act for you where it is disputed.

A free 15-minute consultation is a sensible place to start, on 0203 345 2000. Our family law fees page explains how we charge, and we do not offer legal aid. Making the agreement does not involve the court, so no court fee arises; the GOV.UK court fees page sets out the fees if you later ask the court for an order.