Legal advice: marriage tips and traps
PUBLISHED: 13:00 26 November 2015
Tracey Dargan, partner at Hertford-based Longmores Solicitors, outlines 10 steps to take to protect both parties in a marriage or partnership should it break down
With 42 per cent of marriages ending in divorce in the UK and around 40 per cent of couples who cohabit separating before their 10th anniversary, family law is an area that many people will experience. If you are thinking about entering into a relationship or plan to marry, it’s important to have a basic understanding of your rights and how you can protect yourself should things go wrong.
1 The ‘Common law’ marriage myth
Unmarried couples do not acquire the same or similar rights as a married couple; there is no right to be maintained by your partner and you have no automatic right to any of their assets. However, protective measures can be taken:
● You can enter into an agreement that sets out what financial provision will be made on separation.
● Before buying a property together, decide the shares in which you will own the property and set this out in a formal legal document.
● As a cohabitant, you have no automatic right to inherit from your partner’s estate on their death. It is therefore vital to make a will.
2 Think pre-nup
Prenuptial agreements are contracts before marriage stipulating how a couple’s assets should be divided on divorce. Pre-nups are not legally binding, but it is anticipated that the law will be changed. However, as things stand, they can significantly influence a financial settlement awarded on divorce.
3 Inherited and premarital assets
If there are insufficient assets to meet both parties’ needs, then the fact that an asset has been brought into the marriage or inherited by one party will carry little, if any weight. However, in big money cases, the nature and source of the asset may be a good reason to adjust the financial settlement.
4 International considerations
If the divorcing couple are foreign nationals, or either or both live abroad, it is essential to consider the choice of jurisdiction. Speed is vital in cases involving another European Community country, since the divorce will be dealt with wherever proceedings are issued first.
Trusts will be taken into account if the court sees them as a resource now or in the foreseeable future.
There is no automatic entitlement to an equal share of assets. The court has a wide discretion when deciding the financial settlement. Each case is decided on its own facts.
7 Freezing injunctions
If there is a suspicion that one spouse is trying to hide or dissipate assets then urgent action, such as obtaining an injunction, can be taken.
To divorce, you must have been married for one year and prove that the marriage has irretrievably broken down. This must be proven by relying on one of five facts, most commonly unreasonable behaviour or adultery.
It is the parents’ responsibility to try and settle the arrangements for their children and only involve the court if this cannot be achieved.
10 Alternative dispute resolution
There are many alternatives to going to court, including negotiation between solicitors, mediation, collaborative law and arbitration.