PRE-NUP – WHAT’S THAT ? DO I NEED ONE ?

With the romance of Valentine’s Day now behind us, let’s talk again about the practical aspects of our relationships.

With the unavoidable increase in divorce and separation rates, it means that more of us who are getting married or moving in together are not “first timers“. Not only that, either one or both parties may have children from a previous marriage. This can mean ongoing financial ties to an ex-partner and possibly having a home or assets to bring into the new relationship.

So it’s  more important than ever for couples to take a small step back from the romance of their new relationship or wedding plans and think about the practicalities. If they are about to start living together, or planning to tie the knot, they should take legal advice on having a Cohabitation Agreement or Pre-Nuptial Agreement.

These don’t have to be long or complicated documents. The aim is to record what can be agreed amicably straight away, to cover what would happen if you ever did split up:-

  • Do you get to keep the property you brought into the relationship ?
  • Do you have to financially support one another after separation ?
  • How do you split anything held in joint names ?
  • Do you have to share any debts ?

The idea of considering a pre-nup early on is to avoid the time, anxiety and cost of a complex legal battle further down the line. Of course no-one has a crystal ball and your thoughts on how assets should be divided between you may change if you are married for many years, or if you have children together but in that case, no problem – you simply agree to review the terms of the Agreement on certain “trigger” events.

If you would like more information on having a Cohabitation or Pre-Nuptial Agreement drawn up please contact

Enfield:  

Vijaya Sumputh

0208 363 4444      vijaya.sumputh@curwens.co.uk

Hoddesdon/Royston:

Amanda Thurston 

01992 463727       amanda.thurston@curwens.co.uk

Curwens LLP is your local firm of solicitors offering you expert legal advice when you need it most.

Offices in Royston, Hoddesdon and Enfield.

www.curwens.co.uk

 

 

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D-I-V-O-R-C-E – who gets what?

This month, I’m grateful to my colleague, Vijaya Sumputh, a specialist Family Law Solicitor at Curwens for her timely advice on the way some family assets are dealt with in divorce :

“According to a recent article in the Guardian, divorce enquiries are expected to rise more than 300% at the beginning of the year.  As Family Law solicitors, in this situation, we’re often asked the big question :  Who gets what?

The process of dividing the marital assets on divorce or family breakdown can be  emotional and complicated. What our clients want is a clear idea of what they may end up with at the end of this process, for example:

  • Who gets the matrimonial home?
  • Who gets the engagement ring?
  • Who gets the family pet?

Sadly, it’s not always possible to give a definitive answer to these questions, particularly in the early stages.

The Courts approach each case on its own individual set of facts – what might be right for one family, may not necessarily be right in all cases. The law in England and Wales is based on a discretionary regime which means there is a vast range of settlement options available in different circumstances.

There is no hard-and-fast rule, which is why it is important to take legal advice so that you have a better idea of the range of likely outcomes in your case.

Who gets the family home?

Often the family home is the biggest matrimonial asset and potentially the most emotionally significant one. Whether the house will end up being sold (and the net proceeds of sale divided) or transferred to one of the spouses, very much depends on the family’s needs.

In some cases, the family home may be kept by one spouse if that spouse is the primary carer for the children. Unless there is sufficient net equity in the property to re-house both spouses in a mortgage-free property, priority will usually be given to the spouse who needs to have the children living with him or her.

In some cases, the family home is kept by one party until a defined point in the future (such as when the children are all over 18) when the former family home can be placed on the market for sale at a price to be agreed by the parties (or if they can’t agree, as determined by a Court).

If, however, there are other assets that a Court can take into account, then one spouse may be able to retain the house permanently and pay other funds to the other person to “buy out” their interest.

When making any financial order, the court will look at a number of factors such as the length of the marriage, the age of the parties, whether they are working and what their earning capacity is, whether there are children, what each party’s needs are and what assets are available to meet those needs. It’s complicated, so do take legal advice.

Who gets the engagement ring?

The answer to this question can vary depending on whether the engagement ring was a family heirloom or perhaps inherited by one party. More often than not, engagement rings are retained by the wife to be passed down to one of the children.

As a general rule, the courts prefer chattels to be divided by agreement but if no agreement can be reached, the court can simply order all chattels to be sold and the proceeds divided.

Who gets the pet?

The family pet is mostly regarded as a member of the family but as the Courts will usually treat family pets much in the same way as any other chattel, we strongly encourage the parties to agree who will have responsibility for continuing to care for (and pay for) their family pet! ”

Vijaya Sumputh  –  0208 363 4444  –  Vijaya.sumputh@curwens.co.uk

www.curwens.co.uk

D-I-V-O-R-C-E

….so sang the legendary country singer, Tammy Wynette almost 50 years ago. With a divorce so many years ago, one might think it was all “done and dusted” as did a Mr. Dale Vince who divorced his wife, Kathleen Wyatt, in 1992, but, not necessarily so, as the Supreme Court ruled recently. For the subject of this blog, I’m grateful to my colleague at Curwens, Family Law specialist, Vijaya Sumputh :

“The talk of this week has been about Kathleen Wyatt (“Kathleen”) and Dale Vince (“Dale”), whose case is a warning to many couples starting divorce proceedings and emphasises the importance of seeking legal advice to finalise financial matters. Kathleen’s marriage to Dale ended in divorce in 1992. At the time neither party had any financial security. Kathleen raised their children without significant financial support from Dale, who eventually went on to have a successful career and acquire considerable wealth.

In 2011, nearly 25 years after their separation and over 20 years after their divorce, Kathleen lodged a maintenance claim seeking a £1.9 million payout from Dale. Her application was originally dismissed under Rule 4.4 of Family Procedure Rules on the basis that there was no prospect of success or was an abuse of the court’s process. Kathleen took her case to the Supreme Court, where Lord Wilson stated that Kathleen’s claim was “legally recognisable” and not an “abuse of process”. His Lordship admitted that “it is obvious, even at this stage, that an award approaching [£1.9million] is out of the question,” but one factor Kathleen could rely on to justify a financial claim was that of her much greater contribution to the upbringing of the parties’ children over many years. Consequently, she may now be entitled to make a claim for a mortgage free property and maintenance.

This decision is striking because matrimonial claims are very different to other civil claims and remain alive after the marriage has come to an end. This case reminds us that there is no time limit for former spouses to apply to a Court in England and Wales for a financial settlement following a divorce, even if their claim is considered to be weak. We have to wait and see whether Kathleen’s application has any value when reassessed by the Family Court, but, meanwhile we may see an increase in opportunistic divorce financial applications.

This is a wake-up call for divorcing couples who do not want to have sleepless nights and a big hole in their pockets, that they should obtain a financial order from the Court at the time of their divorce stating that neither party will make a further financial claim against the other.”

vijaya.sumputh@curwens.co.uk
March 2015
http://www.curwens.co.uk