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Family Law Guide
Relationships can seem indestructible when they begin. The excitement and the feeling of being in love can make it seem pointless or disloyal to raise the question, ‘what do we do if it all goes wrong?’
With high divorce rates and ever-increasing numbers of people cohabiting (cohabitants have limited rights), it is common sense for people to consider what their position would be should a relationship end. In some circumstances, if you wait to see what happens, it may be too late to protect your interests if things do go wrong. It is therefore better to be informed and prepared so as to avoid any nasty surprises down the line.
Some people cohabit, others marry and some become civil partners. Some people have children and some do not. Different arrangements can produce different outcomes on separation or the death of a partner. Whatever your situation, this guide aims to provide you with some useful and insightful information.
Before Marriage or Civil Partnership
Prior to marrying, steps can be taken to protect your position in the event that the marriage fails.
One way you can protect your assets is to sign a pre-nuptial agreement. Although the UK courts have previously refused to enforce ‘pre-nups’, they can be highly persuasive, and a recent Court of Appeal case suggests that they will be effective provided both parties have entered into the agreement with full knowledge of its consequences and, where appropriate, with independent professional advice. Once these requirements have been satisfied, as long as both parties have entered into the agreement willingly and without undue pressure being exerted, the pre-nup will most likely be deemed valid.
The courts have stated that it is not for them to change the law, however, and as statute does not cover pre-nups, legislation to regularise the position is likely to be enacted eventually.
After Marriage or Civil Partnership
If you are already married, there are still steps you can take to safeguard your position. A post-nuptial agreement can be made whereby you agree upon the division of assets should you separate. In order for a post-nuptial agreement to be enforceable, the courts will wish to ensure that it is fair. To determine this, it looks at the parties’ behaviour prior to signing the post-nup and the circumstances surrounding the making of the agreement, including whether one partner placed the other under undue pressure to agree to it and the interdependence and mutual influence that existed between the parties.
Separation or Divorce
A divorce generally takes between five and eight months to be completed. In order to obtain a divorce, a couple must have been married for a year or more in a way that is legally recognised under UK law.
Before a divorce will be granted by the courts, it has to be shown that the marriage has broken down irretrievably. In order to be deemed irretrievable, the breakdown of the marriage must be due to adultery, unreasonable behaviour, desertion, two years’ separation with consent or five years’ separation without consent.
The party that files for a divorce is referred to as the petitioner and the party that has the petition for divorce served on them is know as the respondent. Once the respondent has received the notice of proceedings (form D8) – also called the divorce petition – and the acknowledgement of service (form D10), they should return the latter to the court within eight days. If the respondent intends to contest the divorce, they have a further 21 days after returning form D10 to do so. However, it is quite rare to defend a divorce and anyone considering doing so should take professional advice straight away.
Following this, a district judge will generally set a date for the first formal proceedings that are required in order to obtain a divorce. At these proceedings, the ‘decree nisi’ will be issued. After the decree nisi is granted, the petitioner can apply for the ‘decree absolute’, which is the second step in the formal proceedings. Once the decree absolute has been granted, the divorce is final.
Since the Civil Partnership Act 2004 came into force, partners of the same sex can enjoy virtually the same legal privileges as married couples. As is the case with marriage, a civil partnership can only be ended by legal dissolution if the relationship has irretrievably broken down, by annulment, or when one partner dies. Cases that have been heard to date show that when a civil partnership breaks down, the courts are taking the same stance with regard to the division of assets as they do for the dissolution of a marriage.
Death and Inheritance
Should a civil partnership end due to the death of one of the couple, the remaining partner has the same rights as the surviving spouse of a marriage. The same planning with regard to wills and Inheritance Tax (IHT) issues should therefore be undertaken. As with marriage, a civil partnership invalidates an earlier will. Also, the normal claims for financial relief apply in the same way as they do for married couples.
There is a common misconception that unmarried cohabitants can have what is often referred to as a ‘common law marriage’. This is simply not true. There is no such thing as common law marriage in England and Wales. In reality, cohabitants have very limited rights. Some couples choose to live together without marrying; others perhaps intended to marry but this never came to fruition. Whatever the reasoning, steps can be taken to ensure that who owns what is clear from the outset.
It is also vital to note that unmarried couples are not protected by the laws on intestacy – the law governing the distribution of someone’s assets should they die without having made a will. You could live with someone for all of your adult life and, unlike a spouse or civil partner, still not automatically inherit their estate should they predecease you. Even if your partner has made a will leaving you their estate, there will be no exemption from IHT as there is when an estate passes to a surviving spouse or civil partner. In some cases, in order to receive anything at all, you may have to prove to the courts that assets were co-owned or that you qualify for financial provision from the estate as a dependant of the deceased under the Inheritance (Provision for Family and Dependants) Act 1975. This Act enables provision to be made for those who were dependent on the deceased but who have not been left with adequate financial provision.
In order to avoid such problems, which can take a long time to sort out and can also prove very costly, preventive measures can be taken.
If a couple have not married or entered into a civil partnership, a cohabitation agreement (otherwise known as a ‘living together agreement’) can be made. This is a contract between the parties agreeing how their combined assets should be divided should this become necessary. A cohabitation agreement can make it clear who owns what and can include, among other things, information on bank accounts, insurances, specific items, whether or not there is an intention for one party to support the other and any financial arrangements relating to family members.
One of the most important elements when buying a home is the decision as to the apportionment of shares in the property. If you purchase a property with someone else and it is in both your names, two types of ownership are available. Firstly, you could choose to own the property as ‘tenants in common’. Under this type of ownership the shares of the property are kept strictly divided in whatever ratio a couple decide. This does not have to reflect the amount of money each party contributed towards the purchase. You are free to divide shares as you see fit. Alternatively, you could choose to own the property as ‘joint tenants’, which essentially means that you both own the property in its entirety. The second type of ownership allows you to inherit the other person’s interest in the property automatically on their death.
Another way of owning property is by way of a trust, using a trust deed to set out both partners’ intentions and wishes in relation to their home. This should preferably be done in association with a living together agreement that sets out your general intentions. The trust deed should set out a brief history of the property, the proportion of money provided for its purchase by each partner, when it was purchased and information about the mortgage. Agreement can also be made on the couple’s future intentions with regard to mortgage repayments and insurance. In addition, it can state any rules that a couple choose to abide by, such as agreeing that one person is not able to obtain a mortgage against the property without the agreement of the other. A provision can also be included making clear the terms under which one party can buy out the other’s interest in the property should the relationship end.
Should you be in a situation where only one person’s name is shown in the title deeds as the legal owner of the property, a trust can still be set up. In a situation such as this, the trust deed will state that the property is being held in trust for the other partner and specify the nature and extent of their interest in the trust property.
Arguments over property are common when a relationship breaks up. Creating a record of your intentions when you first acquire the property is a sensible precaution.
Agreements such as those mentioned can save a lot of pain and heartache when a relationship ends. This is particularly desirable when children are involved.
Making a will is also of vital importance, not only because it enables you to determine how your assets are distributed but also because having a valid will in place, with named executors, will make the administration of your estate much easier for your family at what is inevitably a difficult time.