Agreements Couples Make Before and Instead of Marrying

The points below about agreements about property between partners are ordered by how much difference they make, not by how often they get repeated.

What such agreements try to do

An agreement made before or during a relationship attempts to set out what should happen to property and income if the relationship ends. The motivation is usually to protect assets brought into the relationship, inherited wealth, or business interests involving other people.

Second marriages frequently involve such agreements, since children from earlier relationships create obligations the couple wants to preserve. The agreements also reduce uncertainty, which has real value even where their enforceability is not absolute. How much weight any such agreement carries depends entirely on the legal system that would ultimately consider it.

Very different treatment across systems

Some jurisdictions treat these agreements as binding contracts, subject to ordinary contractual protections against unfairness. Others treat them as one factor among many, with courts retaining discretion to depart from them where the outcome would be unjust. A few restrict or refuse to recognise them, particularly where they would leave one party in serious difficulty.

In the wording, couples with connections to more than one country face additional complexity about which system would apply. This variation means an agreement drafted for one jurisdiction may work very differently in another.

What tends to strengthen an agreement

Independent legal advice for both parties is the single most commonly cited requirement across systems that give such agreements weight. Full and honest disclosure of assets and income by both sides is similarly important, since agreements made in ignorance attract scrutiny.

Signing well before a wedding rather than days beforehand reduces arguments about pressure and haste. Terms that leave neither party in serious hardship are considerably more likely to be upheld than those that do not. Reviewing the agreement after major changes, particularly the birth of children, keeps it aligned with the couple's actual circumstances.

What such agreements cannot usually settle

Arrangements for children are generally not something couples can settle in advance, since courts decide by reference to the child's welfare. Child maintenance obligations are commonly outside the scope of what parents can contract away.

For most everyday situations, terms attempting to regulate personal behaviour during the relationship are typically unenforceable and often counterproductive. Provisions that would leave one party dependent on public support are unlikely to be upheld in most systems. Understanding these limits at the drafting stage produces a more realistic and more durable document.

Agreements made during a relationship

Post-nuptial agreements, made after marriage, are used where circumstances change substantially, such as an inheritance or a business sale. They are treated similarly to pre-nuptial agreements in many systems, with the same emphasis on advice and disclosure. Separation agreements, made when a relationship is ending, are a different category and are often given considerable weight.

Cohabitation agreements serve a comparable function for unmarried couples and are frequently more straightforwardly enforceable. Which instrument is appropriate depends on the relationship status and on the jurisdiction involved.

Limitation periods are short and unforgiving, which is why proper advice is worth taking early rather than after reading around.

Approaching the conversation

Raising the subject is uncomfortable, and framing it as planning rather than as anticipating failure usually helps. Both parties having their own adviser makes the process feel more balanced and is generally a requirement anyway. Allowing plenty of time removes the pressure that most often undermines these agreements later.

Recording why the agreement was made, and what each party understood, adds useful context for anyone reading it years afterwards. This is an area requiring specialist family law advice in the relevant jurisdiction rather than general information.

Everything above, in order of what to do first

1. What such agreements try to do. An agreement made before or during a relationship attempts to set out what should happen to property and income if the relationship ends.
2. Very different treatment across systems. Some jurisdictions treat these agreements as binding contracts, subject to ordinary contractual protections against unfairness.
3. What tends to strengthen an agreement. Independent legal advice for both parties is the single most commonly cited requirement across systems that give such agreements weight.
4. What such agreements cannot usually settle. Arrangements for children are generally not something couples can settle in advance, since courts decide by reference to the child's welfare.
5. Agreements made during a relationship. Post-nuptial agreements, made after marriage, are used where circumstances change substantially, such as an inheritance or a business sale.
6. Approaching the conversation. Raising the subject is uncomfortable, and framing it as planning rather than as anticipating failure usually helps.

The takeaway

Get separate advice, disclose fully and sign early, whatever the jurisdiction decides to do with it. General information only; this is not legal advice.

Understanding a process is not the same as being represented in it.