Public health warning marriage can seriously damage your wealth
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Transcript of Public health warning marriage can seriously damage your wealth
PRESENTED BY
DARRELL WEBB
&
ANNA BURGHAM
There is currently no legislation in place to protect the rights of cohabiting couples, as there is for married couples.
So no ‘special status’ for cohabiting couples.
The only recourse available where a dispute arises is in contract law or complicated trust law, which can often result in an outcome that is unsatisfactory to one or both of the parties.
The Legal ownership:
Sole Name – One legal owner
Joint Tenants – Two or more legal owners all having the same interest
Tenants in Common – Two or more legal owners with separate defined interests
Express declaration
Where an express declaration as to how the parties wish to hold the beneficial interest exists it is conclusive ownership.
Resulting trust
A ‘resulting trust’ arises when someone other than the legal owner of the property has made a direct financial contribution towards all or part of the purchase price of the property and there is nothing to suggest that the contribution was intended to be a gift or a loan.
Constructive trust
A ‘constructive trust’ arises where two or more people acquire a property with a common intention that it is to be shared, although the legal ownership is not in all their names.
Express Declaration:
Transfer Form (TR1)
Declaration of Trust
Cohabitation / Living Together Agreement
How is the property to be owned.
Who will pay the mortgage and household bills.
Who is responsible for decorating, maintenance and repairs to the property.
Pension provision, insurance policies and bank accounts.
Who will do the cooking, cleaning, emptying the dishwasher etc.
What happens if there are children.
What will happen if you separate.
The orders fall into two main categories: income orders and capital orders.
The income orders are: Periodical payments (maintenance) Secured periodical payments
The capital orders are: Lump sum orders Property adjustment order (for property to be transferred or
held on trust) Orders for sale Pension sharing orders
In deciding whether to make any of the above orders the Court must consider:
Income, earning capacity, property and other financial resources of the parties
The financial needs, obligations and responsibilities of the parties
Standard of living enjoyed by the family
The age of the parties
Any physical or mental disability of either of the parties
The contributions which either party has made or is likely to be made in the foreseeable future
The conduct of each of the parties
Any benefit which, by reason of the divorce, either party will lose the chance of acquiring
The existence of a pre-marriage agreement
All the circumstances of the case including the welfare of any minor.
Miller v Miller / McFarlane v McFarlane [2006] UKHL 24
Needs – ‘In most cases the search for fairness largely begins and ends at this stage. In most cases the available assets are insufficient to provide adequately for the needs of two homes’
Compensation – ‘This is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage’
Sharing – ‘The parties commit themselves to sharing their lives. They live and work together. When their partnership ends each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary. Fairness requires no less’
‘The parties' matrimonial home, even if this was
brought into the marriage at the outset by one of the
parties, usually has a central place in any marriage.
So it should normally be treated as matrimonial
property for this purpose. As already noted, in
principle the entitlement of each party to a share of the
matrimonial property is the same however long or
short the marriage may have been.’
Form A
Form E, Chronology, Statement of Issues, Questionnaire
First Appointment Hearing
Financial Dispute Resolution Hearing
Final Hearing
Pre-nuptial Agreement – must be entered into
not less than 21 days before the marriage.
Post-nuptial Agreement – can be entered into
at any time after marriage.
‘Not worth the paper they’re written on’
‘They’re totally ignored by the Courts’
‘Absolutely no point in having one’
‘A complete waste of money’
Radmacher v Granatino [2010]
“The Court should give effect to a nuptial agreement which is freely entered into by each party with a full appreciation of its implication, unless in circumstances where it would not be fair to hold the parties to the agreement.”
Timing – The agreement should be signed not
less than 21 days prior to the marriage.
Importance of agreement – Would the parties
have married without the agreement?
Personal circumstances, duress and undue
pressure – are there any warning signs.
Independent Legal Advice – The parties must
understand the terms and legal effect of the
agreement.
Disclosure – Full and frank financial disclosure
should be provided.
Negotiation – It is important that the parties had
the opportunity to negotiate the terms of the
agreement.
Non-Matrimonial Property – there is nothing
inherently unfair in distinguishing between
wealth accumulated during the marriage and
pre-marital property or property that one party
expects to receive from a third party.
Children – the agreement cannot prejudice the
reasonable requirements of any child of the
family.
Need– the agreement should not result in one party being left in a predicament of ‘real need’
Changing Circumstances – the agreement should as far as possible plan for future changes in the parties’ circumstances.
Generally – the parties views as to what constitutes a ‘fair’ division of assets on separation will be important, particularly where they address existing circumstances.
If you have pre-acquired wealth or assets.
If you are likely to receive a substantial gift or
inheritance from your family.
If you have already been through a messy
divorce or separation and wish to avoid going
through it again.
If you have business assets or interests that
you want to keep separate from the
matrimonial assets.
Individual Property
Specific property
Gifts and inheritance
Joint Property
Housing needs
Income needs
Standard of living
Other needs
What may be considered fair today, may not be considered fair in the future.
The mere passage of time is likely to cause an agreement to become unfair.
If there has been a change in circumstances this may cause the agreement to become unfair.
THE ANSWER – REVIEW, REVIEW,REVIEW!!!!
Please contact us with enquiries:
Address:
Providence House
Providence Place
Islington
London
N1 0NT
T: 020 7288 4700
W: www.boltburdon.co.uk