Roses are red, Violets are blue… If things get serious, consider how the law can help you

Valentines Day is almost here and love is in the air. Often a time of romantic reflection, Valentines will see many of us consider that next step in…

Valentines Day is here and love is in the air. Often a time of romantic reflection, Valentines will see many of us consider that next step in our relationships, with recent analysis showing Valentines Day as one of the most popular days to get engaged. Whether through marriage proposals or moving in together, it important to take a moment to think about how these happy commitments can also alter your legal status.

Engagements or cohabitation can have significant legal implications for a couple, whether or not one person is financially weaker or stronger than the other. It is therefore wise to consider a level of advance legal protection to minimise the practical and financial difficulties that can arise should the relationship not proceed as once hoped.   

Ignoring the changes marriage makes to your legal status or failing to consider how cohabitation may alter your finances could have severe implications should a couple later decide to separate. It is worth noting that a marriage certificate brings with it the right for both spouses to make financial claims against the other in the event of divorce. If a couple decide to live together without being married they should be thinking about how finances will be managed and what will happen to any joint property should they go their separate ways.

Considering your position at this early stage could mean less legal costs, less time and less stress in the future. Here we break down some considerations for couples to make, and some top tips on how to be both romantic and practical.

Pre-Nuptial Agreements

Every year more individuals are including Pre-Nuptial Agreements on their pre-wedding checklist. A pre-nuptial agreement is essentially a formal written document prepared in advance of marriage; it sets out what will happen to each person’s assets if they divorce.

They are often used to safeguard assets acquired from an inheritance, or future anticipated inheritance and assets together with how property might be dealt with in the event of a divorce.  As circumstances change, the terms of the agreement can be updated over time – to incorporate changing circumstances as families grow for example. 

Tip

Pre-nuptial agreements are not currently binding in English law, but there are specific rules to follow to ensure that yours carries as much weight as it can - advice from a family law specialist is essential. In 2010, the Supreme Court held that a pre-nuptial agreement should be upheld by the court if it was entered into freely by the parties, they fully appreciated the implications of the agreement and that it was not unfair. Further, it must meet the financial needs of both parties and of any children, and should be signed at least 28 days before the wedding.

Cohabitation/Living Together Agreement

The law still fails to recognise that if a cohabitating relationship breaks down there is very little protection for the financially weaker individual. Despite common belief, there is no such status as a “common-law wife or husband” and unlike married couples, a cohabitee has no legal right to maintenance for themselves or a share in the capital assets or pensions, regardless of the numbers of years the parties have lived together. Any property claims they may have will be limited to any interest they are able to establish under land or trust laws.  Both areas of law are complex, can be very stressful and litigation can be costly. 

Tip

A properly drafted cohabitation agreement prepared at the outset of a relationship by a family law specialist would provide certainty and reassurance should the relationship end.  

Wills

When taking the next step in your relationship only the most practical of us would think about what might mean if one of you dies.

If you want your partner to inherit your estate you need to make a Will. Without one, your estate will pass according to the “intestacy rules” which make no provision for a partner. If you are not married and have no children, the rules provide that your estate will pass to your parents, your siblings (if your parents have died) and then to more distant relatives if there are no surviving siblings.  

If you own any property jointly with your partner or a spouse you need to consider how it is held. Property can be held as ‘joint tenants’ or ‘tenants in common’.  Property you own as a joint tenant will pass to the other joint owner upon your death irrespective of what is said in your Will or under the intestacy rules. On the other hand, if you own property as a tenant in common it will pass according to your Will or the intestacy rules.

It may be that you are moving in with a partner but do not want them to inherit your estate. If so, be aware of their potential claim for reasonable provision. 

Tip

Your best option would be to make a Will so it is clear how you want your estate to be divided and place a letter with your Will setting out your reasons for excluding your partner or explaining why you consider the provision you have made for them is appropriate.

If you already have a Will when you get married it will be revoked by the marriage.  Your estate will then be governed by the intestacy rules.  While the rules do make provision for a surviving spouse it may not be what you want. 

Tip

Not all Wills have to be revoked on marriage. A Will can be drafted to say that it is made in contemplation of a marriage to a particular person. If so, it won’t be revoked by marriage - provided the marriage is to the person named in the Will!

Making a Will ensures your estate will no longer be governed by the intestacy rules and will ensure your legacy is allocated in the way you would have liked.

Richard Leslie is a Consultant and Tania Derrett-Smith is an Associate in the Private Client team at national law firm Weightmans

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