Jenny September 8, 2021

“The parties [at Balfour v Balfour] lived together in friendship. In such cases, their national agreements are generally not intended to establish legal relations. It is quite different when the parties do not live in friendship, but are separated or are about to separate. They negotiate with zeal. They do not rely on honourable agreements. It can be assumed that they intend to create legal relationships. While there is no imperative requirement that you and your spouse appoint a lawyer, it is in your best interest to seek independent legal advice before signing a national contract. Independent legal advice means that you and your spouse each hire a different lawyer to advise you on the terms of the agreement. Your lawyer will check the terms of the agreement with you, make sure you fully understand the consequences of signing the contract, and advise you if the agreement is in your best interest. You don`t need a lawyer to enter into a national contract. However, it is a good idea to get separate legal advice before signing. You and your spouse cannot get advice from the same lawyer.

Courts generally do not change what property sharing contracts say. They are a little more likely to change what a marital support contract says. If your situation is worse than when signing the contract, it is more likely that the court will change the agreement. However, Sadler v. Reynolds ( 2005) suggests that there may be situations that fall under a kind of “central house” between household and industry, which affects the weight of the presumption. In this case, there was the alleged contract between a journalist and a businessman who were friends. The journalist wanted to write the autobiography “rags to wealth” of the businessman and share the profits. The businessman chose another author instead. The judge suggested that the verbal agreement was “somewhere between a manifestly commercial transaction and a social exchange.” The journalist was asked to show that the intention was to establish legal relations “when the responsibility was less onerous than that which would be necessary to establish such an intention in the context of a purely social relationship”.

The concept of an “internal” agreement should be interpreted as relating more to the object than to the relationship between the parties. For example, if a woman agrees to sell her car to her brother for £1,500, there is little reason to deny contract status to this agreement and it must be assumed that it is mandatory, unless there is evidence to the contrary. In the absence of a cohabitation contract or marriage contract, you are vulnerable to the fact that your spouse shares your property, may have to pay alimony, and your spouse asserts rights against your estate if you have died. . . .