Top Ten Marriage Tips and Traps

With a high rate of divorce and relationship breakdown in this country, family law is sadly a subject matter that many will experience. If you are thinking about entering into a relationship or plan to marry, it is important that you have a basic understanding of your rights and how you can protect yourself should things go wrong.

In this Top 10 list, we outline our tips, dispel some myths and point out the traps to be avoided.

The ‘common law’ marriage myth

Unmarried couples do not acquire the same or similar rights to a married couple, there is no right to be maintained by your partner and you have no automatic right to any of their assets. However, protective measures can be taken:

• You can enter into a Cohabitation Agreement that sets out what financial provision will be made on separation.
• Before buying a property together, decide the shares in which you will own the property and set this out in a formal legal document, which is called a Declaration of Trust.
• As a cohabitant, you have no automatic right to inherit from your partner’s estate on their death. It is therefore vital to make a Will.
• There is also no automatic right to benefit from each other’s pension unless they are formally named as a nominated beneficiary. A life policy can be put in place to make provision for your partner on your death.

Think pre-nup

A pre-nuptial agreement is an agreement made by a couple before they marry or enter into a civil partnership, which sets out how they wish their assets to be divided on divorce or the dissolution of their civil partnership. A post-nuptial agreement is the same as a pre-nuptial agreement, except that it is entered into by a couple after their marriage or civil partnership.

Pre-nuptial and post-nuptial agreements are not currently legally binding, although it is anticipated that the law will be changed. However, as things stand, they can significantly influence a financial settlement awarded on divorce and may be upheld depending on the facts of the case.

You cannot divorce in the first year of marriage

To divorce, you must have been married for one year; your marriage has irretrievably broken down and your marriage is legally recognised in this country.

On divorce, there is no longer a requirement to prove that the marriage has irretrievably broken down and blame your spouse for this. The ‘no fault’ divorce process gives couples a better chance of agreeing the issues that arise on a relationship breakdown within minimum conflict.

Where to divorce for couples with international connections

If the divorcing couple have connections with other countries, it may be that they are able to apply for a divorce in more than one country. The important question is then where to get divorced, which will depend on many factors including how long you need to wait before you are able to apply for a divorce, how long the divorce process will take and the financial settlement that you will be able to obtain.  For the financially weaker party, England is usually the country of choice since it is known to award more generous financial settlements than most other countries.

If there is a dispute regarding which country should deal with the divorce, the courts apply complex rules to decide the matter, including consideration being given to which country has the closest connection to the parties. Just because you are first in time with your divorce application does not necessarily mean that the proceedings will take place in this country. This type of disputes is very time consuming and costly. It is always advisable to seek legal advice before issuing an application for a divorce to ensure that the country most suited to you is chosen.

Finances may not be split equally

There is no automatic entitlement to an equal share of assets. The court has a wide discretion when deciding the financial settlement. Each case is decided on its own facts.

Pre-marital assets, inherited and gifted wealth (‘non-matrimonial property’)

If there are insufficient assets to meet both parties’ needs, then the fact that an asset has been brought into the marriage or inherited/gifted during the marriage by one party will carry little, if any weight. However, where needs can be met from other assets, then there will be a case to adjust the settlement to reflect the fact that these contributions have come from an external source to the marriage.

Trusts

Trusts that have been set up to manage assets, such as property, land, investments, will be taken into account, as a resource available to a party, if they are a beneficiary of the trust and they have and/or are likely to receive distributions from it now or in the foreseeable future.

Hiding assets

If there is a suspicion that one spouse is trying to hide or dissipate assets then urgent action, such as obtaining a freezing injunction, can be taken.  This stops the assets being moved until a judgement has been made.

Co-parenting of children on divorce

It is the parents’ responsibility to try and settle the arrangements for their children and only involve the court if this cannot be achieved.  The term “custody” is no longer used and there is no automatic entitlement for an equal split of time between parents.  The best interests of children should always be put first as well as the opportunity to have a relationship with both parents.

Resolving matters outside of the court process

There are many alternatives to going to court, including negotiation between solicitors, mediation, collaborative law and arbitration.  These options are usually less expensive and quicker than going through the courts to deal with issues that may arise, such as arrangements for children and finances.

When dealing with finances, once a financial settlement is reached, then the parties make a joint application to the court to convert the settlement into an Order of the court, which is subject to the approval of the Judge.

Here to Help

For advice on any family or divorce matter, please contact our Partner and Head of Divorce and Family Law, Tracey Dargan.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.