Separation or divorce is the last thing on your mind when choosing your wedding dress and your first dance tune. Unfortunately, 40% of marriages end in divorce and a Pre-Marital Agreement can make things much clearer and less stressful in the event that this happens.
Of course no one wants their marriage to break down, but a Pre-Marital Agreement acts as an insurance policy if the worst should happen.
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It may be that you and your spouse or civil partner would like to think ahead as to what would happen if you split up. You may be bringing more assets into the relationship than the other and wish to protect it, or make provision for children from previous relationships. We can draft a Pre-marital agreement for you to meet your particular needs. It is important to regularly review such an agreement as your lives move on, for example when you have children.
Following the case called “Radmacher”, decided by the Supreme Court in October 2010, “the court should give effect to a nuptial agreement that is entered in to by each party with the full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”. Pre and Post-Marital Agreements now hold much more weight in the English courts than previously.
Declaration of Trust
If you are buying a property jointly, but the purchase price is unequal or you intend to pay a repayment mortgage in differing shares, you ought to enter into a Declaration of Trust to protect your greater interest in the property.
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We can draft a Declaration of Trust that will protect your greater share in the property in the event of a dispute in the future. The absence of such a document when purchasing a property can mean that property law operates in a way that you did not envisage. Our residential property team can help you get this right at the outset to prevent stress and potentially costly litigation in the future. If anything changes over time, (for example if you contribute an additional lump sum to the property or spend a considerable amount in improving it), then the family team can draft a Declaration of Trust to reflect the new situation.
In addition in some circumstances one party may wish to move out of the property and the other take over payment of the mortgage when there is a joint mortgage in place. If the mortgage company will not let you do this, a Declaration of Trust can set out your wishes in the short term and prevent unfair claims on the property by the person that has moved out in the future.
It is essential that you have a Will in place because if you live with someone, regardless of whether you are married to each other or not, they will not automatically inherit your assets in the event of your death. If you do have a Will in place, when you get married it will automatically be revoked, unless it has been written in contemplation of marriage.
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If you die without leaving a valid Will in place, the Intestacy Rules apply which means that the people you wish to benefit from your assets do not do so because they are not entitled to them under the law. The Intestacy Rules may also result in complex trusts being set up for your family which can be costly to administer and contrary to your wishes.
The absence of a Will does not mean that your spouse or civil partner will inherit everything – they may not. To be certain and to ensure that your wishes are properly carried out, you must make a Will – our wills, probate & trusts team will be able to provide you with further advice on this.