An engagement or a wedding is a milestone in a person’s life. The start of a new era.
Planning for a wedding can take as long as you like, a few weeks to a few years depending on the grandeur of the occasion and the desires of the couple. A commitment to live together whether in matrimony, civil partnership, a long term engagement or a mutual commitment to each other also has legal implications and consequences. It is just as important to sort out where you are going to live and property ownership as it is to plan the colour schemes and place settings.
It’s not all chocolate and roses!
Often, one or both of the couple already own a property before meeting or living together. Additionally you may have an established career or savings or have received an inheritance. It is possible to protect those pre-owned assets by entering into a pre-nuptial agreement.
Currently under UK Law each case of a Pre-nuptial agreement is decided individually. The following are the criteria currently taken into consideration; so long as each party has had independent legal advice, they have given to each other through their solicitors full details of their financial circumstances, the agreement was entered into freely and a reasonable time before the ceremony plus nothing significant has occurred which cannot be ignored or was not taken into account in the agreement, such as a birth of a child or receipt of an unexpected windfall, the court may be willing to uphold that pre-nuptial agreement.
Such agreements are more likely to be upheld after the break down of a short marriage rather than a long one but only time will tell as the acceptance of pre-nuptial agreements in English courts is relatively recent. The legal costs in preparing an agreement are far less than the average cost of a wedding.
If there isn’t going to be a legal ceremony the start of living together can be heralded by a Cohabitation Agreement clearly setting out the arrangements for property ownership and the other assets, such as, savings and investments. It can also set out how each person will contribute towards the payment of the mortgage and the bills and how the property and assets will be divided on a separation.
An agreement concerning the ownership of property can be recorded in a Trust Deed. This can apply to a situation where a property is owned in one person’s name and the other has contributed towards the purchase by paying some or all of the deposit but is not going to be on the title deeds. This can be because they already own a property with a mortgage or they have a poor credit rating or do not earn enough to get on the mortgage. The deed records the contributions towards the property and who will be responsible for the payment of the mortgage and sets out how the proceeds will be divided on a sale. A Trust Deed can be set up for a property that is already owned and one person is moving in or for a joint venture whether the property is bought in joint names or in just one name. A jointly owned property does not have to be owned equally and where there are unequal contributions towards the purchase of a jointly owned property the Trust Deed will state the shares each owner has. A property can be registered in the names of up to 4 people.
A helping hand
Mediation can be used to help in reaching the terms of a Pre-Nuptial agreement. Mediation is where the couple meets with an impartial solicitor to help them reach an agreement. All the negotiations are confidential and if an agreement is reached it is not binding until it is recorded in a Pre-Nuptial agreement. Agreeing terms in mediation can be far quicker and cheaper than using a solicitor.
Another option is to use a Collaboratively Trained lawyer to help them in a series of meetings between the couple and their lawyer s and they help each other to come to an agreement. The traditional route is using a solicitor to assist in the negotiations and the exchange of information. After mediation the agreement will have to be prepared by a solicitor.
Till death do us part
Marriage revokes a Will unless the Will is made in contemplation of marriage. Making a Will should certainly be on the To Do List of all those intending to marry or enter into a Civil Partnership.
Buying a property is another time to make a Will or update an existing one. A Will is essential if a Trust Deed is obtained as it makes sure that the property passes in accordance with the terms of the Deed. For example, David owns a property in his sole name, he has children from a previous relationship who do not live with him and he has a Trust Deed saying he owns 70% and, his new partner Nick, who is disabled and housebound, owns 30% . David and Nick both want Nick to stay in the property until he dies. If David dies first and has not made a will leaving his share of the property to Nick, David’s children will inherit their father’s share and can make Nick homeless if David dies without making a Will at all. If they had lived together for more than 2 years Nick may have a claim against David’s estate but that will mean making an expensive application to the court which will be time consuming and stressful and is a situation which could have been avoided if David had made a Will setting out his wishes. We are a nation with a high proportion of property ownership but only 70% of the population have Wills. It isn’t expensive to make a Will and it is worth seeking legal advice from a Solicitor who is legally qualified to give advice on wills and trusts and the tax consequences of arising on death and how they can be reduced with careful tax planning.
The birth of a child is another time to think about making a Will.
Whilst love is in the air and you are floating on clouds it seems very unromantic to be thinking about sorting out property ownership and wills. It is, but it is sensible. Unfortunately, it is a fact that half of marriages currently end in divorce and with more and more couples choosing not to enter into a legal ceremony the importance of recording your intentions at the start of a relationship cannot be over stated. A new relationship can be embarked upon at any time in our lives so just because it is the first time round doesn’t mean that you have to make a mistake and ignore the advice and learn that you definitely have to do it the second time around! You should not rely on the advice in this article but take your own advice as each person’s situation is unique. Instructing a local solicitor will give you a personal service suited to your needs and requirements.