Legal considerations before tying the knot

So you have met your perfect other half and plan to walk down the aisle with them before enjoying your very own "happily every after", reminiscent of an array of romantic comedies you have watched. 

While gazing into your partner’s eyes fills you with love and satisfaction, it is easy to lose sight of the potential for the sweet to turn sour, and while no one wants that to happen, the reality is that divorce is relatively common.

The latest figures from the Office for National Statistics (ONS) showed the number of divorces in England and Wales totalled 119,589 in 2010, representing a rise of 4.9 per cent on the year previously.

As such, the current divorce rate lies at around 11 per cent, meaning more than one in ten couples will see their marriage end in divorce, despite their best intentions at the beginning of the love story.

Divorce tends to occur more frequently in older couples, with the ONS figures revealing the number of divorces in 2010 was highest among men and women aged between 40 and 44.

Under the Matrimonial and Family Proceedings Act 1984, newlyweds cannot file for divorce within the first year of marriage, giving them a full 12 months to resolve their issues before calling it a day.

Of course, there is truth behind the age old saying “prevention is better than cure”, so protecting your monetary assets against divorce proceedings that could see you lose half your wealth is surely common sense.

Many loved-up couples wince at the mention of a prenuptial agreement but these can be vital in pleading your case in court if the relationship has turned nasty and you need to defend your right to finances you earned.

While prenuptial agreements are legally-binding in Scotland, the same cannot be said for England and Wales. However, they hold a lot of weight in court and are likely to heavily influence the judge’s ruling.

When you draw up a prenuptial agreement, you should only focus on money matters, so mentioning a promise by your spouse to clean the house every Saturday should not be included and could devalue its viability.

Similarly, the judge will make his or her own mind up regarding the future of any children involved in the case and as such, the issue of who will take primary care for them should not be written into a prenuptial agreement.

The judge is likely to dismiss any claims that fall outside financial matters, with this being of particular importance when it comes to children.

In an article for The Guardian, law partner at Turcan Connell, Philippa Cunniff, said: “[A prenuptial agreement] may be the last thing on your mind while you’re planning your lavish honeymoon to the Bahamas, but it is the most practical solution if there’s a significant gap between the wealth of the bride and groom.”

While there is a strong argument for drawing up a prenuptial agreement, it is also vital for happily-married couples to ensure they have provisions in place to distribute their assets and wealth once they have died.

As such, a Will should be created by spouses to ensure the right property, assets and monies go to the intended persons, which a judge will not necessarily recognise as the living spouse.

Many make the mistake of believing that marriage is testament enough to where assets should go once a spouse has passed away, however, without a will, it is up to the judge’s discretion to determine where this wealth is distributed.

Ms Cunniff concluded: “Having a will drawn up is inexpensive and can save a great deal of heartache and confusion further down the line.”

See Lawpack’s prenuptial agreement and DIY Will for more information. 

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Published on: March 16, 2012

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