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The latest publication includes the following commentary about Allard Bailey Family Law:

‘The ‘attentive and responsive team’ at Allard Bailey Family Law ‘undertakes a high volume of HNW work – which is testament to its expertise’.  The team of ‘very experienced female solicitors who combine expertise with kindness’ is co-led by Sabrina Bailey and Louise Allard.  It is regularly instructed on high-value financial cases with an international element and with complex tax, trusts and business assets as well as on difficult children cases.  It has been expanding at partner level with the promotions of Louise Poulton and Jennifer Granby to the partnership and the addition of Siobhan Lomasney from Fletcher Day.’

The Legal 500 2023

Testimonials included in the edition, which were obtained through independant research:

‘Louise Allard is a stellar individual, her work is at a high level and she is hugely proactive and effective on behalf of her clients. She is fantastic to work with, very collaborative and insightful with great knowledge of the law as well as how to strategise effectively’.

‘Louise Poulton is one to watch, her command of her cases is impressive, she is diligent, hugely supportive and caring in respect of her clients and very easy to work with. Her grasp of the nuances in a particular case are excellent and instinctive. The way she prepares cases makes it very easy to come in as counsel and do a great job. She is fantastic to work with’.

‘I have mainly worked with Jennifer Granby. Jennifer is pragmatic and sensible, whilst also being approachable and client-friendly. Very easy to work with and has a very good grasp of the issues and of the best way in which to present her clients’ arguments’.

As a specialist firm with offices in London and Hertford, we focus on all areas of family law and the preservation of private wealth.  

If you would like to speak to a family solicitor about adoption, child arrangements, dissolution, divorce, domestic abuse, financial settlements, nuptial agreements, separation, surrogacy or any other area of family law, please call 020 7993 2936 to book a consultation or complete a Contact Request.  Alternatively, you can start your matter online using our Free Family Law Portal.

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For International Women’s Day, our Managing Partners Louise Allard and Sabrina Bailey discuss gender bias in modern families, how this translates to family law on separation and the steps that can be taken to level the playing field.

Louise addresses the issues for married mothers:

“In the last 50 years there have been leaps in society’s attitude towards the roles of Wife and Husband. It is generally accepted that women can work and men can help within the home – and divorce law has changed to reflect this.  Lifetime orders for spousal maintenance are becoming a thing of the past and, if a clean break is not possible, spouses are expected to achieve financial independence within a few years.

The theory is sound, but in practice there is a clear stereotype when it comes to the roles of Mother and Father, which leaves women at a disadvantage if the relationship breaks down.

Although there are exceptions, women generally take the lead in caring for children, which often means taking a step back from their career, working part-time or giving up work altogether.

Reverting to traditional roles can seem like a good idea for the family, but the reality is that it usually affects the women’s job prospects if she returns to the workforce.  It’s unlikely to be an issue if the husband provides financial support in exchange for the wife forfeiting her career, but it can pose a problem when a couple separates.  The courts will want the wife to become financially independent and that can mean major changes in lifestyle if her earnings potential has been capped and the husband does not agree to provide the ongoing financial support that was expected.” 

Sabrina highlights how the position of unmarried mothers is even more tenuous:

“Marriage is declining in popularity and unmarried parents are the largest rising family type. Unmarried women who give up their careers and ‘take one for the team’ find themselves in an even more vulnerable situation if the relationship ends. 

If you are married you will divide the marital pot and hopefully leave the relationship with enough capital to meet your immediate needs.  If you are unmarried and assets are not in joint names, the father does not have a legal obligation to share them with you.  This is true regardless of how long you are together, so even after a 20-year relationship, if the house is in his name, he can keep it.

If the mother has day-to-day responsibility for a child, she can apply for financial support and housing for the child, but she will need to find a separate income to meet her own needs.  This can be difficult if you are the primary carer and must fit work around your children – or you’ve been out of the workforce for a long time.

If you have a 50/50 care arrangement with the father or your children are older, you might not qualify for any form of child maintenance or housing support for the child.  If Dad’s career has progressed and Mum is restarting hers after a break, this can create a real imbalance in the child’s life experiences with each parent.”

What can we do to tackle the bias?

Sabrina for unmarried couples:

I would always advise unmarried couples to enter into a Cohabitation Contract, also known as a Living Together Agreement, which sets out their intentions for the ownership and division of assets, as well as their responsibilities for upkeep, bills and debts – and any other arrangements they would like to be in place if the relationship ends.

If you don’t have one, it’s a good idea to get Cohabitation Agreement in place when you are planning children, as it can help you to agree your roles and responsibilities over and above the legal requirement to provide for the children, should you separate.  

A Cohabitation Agreement is particularly important if you have a shared expectation that your children will be raised in a lifestyle that can only be afforded by one parent, for example if your child’s private education is funded by the parent with higher earnings and you want to ensure it will continue irrespective of your relationship.

Louise for married or soon-to-be married couples:

“Couples have the option of entering into a Prenuptial Agreement before they marry or a Postnuptial Agreement afterwards, and they can be helpful tools if your roles and contributions to the relationship are going to change and you want to ensure that you have similar expectations.  Although they are not legally binding in the strictest sense, the Court is likely to uphold a Prenuptial or Postnuptial Agreement setting out separation arrangements as long as it has been entered into voluntarily and is fair.”

Sabrina adds:

“On a personal level, I would suggest that women keep their career going in some form if they can, so they have something to go back to if they want or need to. I left London and took a career break when I had my eldest and it wasn’t easy to return, but I’m now divorced and raising three children alone without any contact from their father so I’m grateful I have my career already, rather than having to start from scratch.”

Summary

As attitudes towards relationships and divorce laws evolve, the women who make the biggest sacrifices seem to be paying the greatest price.  It is possible to #BreakTheBias by entering into a Nuptial Agreement or Cohabitation Contract with your partner and we encourage you to do so. 

Follow these links to learn more:

Legal Advice

If you would like to speak to a family solicitor about the specifics of your situation, you can call 020 7993 2936 to book a consultation or complete a Contact Request.

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Although prenups are not 100% legally binding in the strictest sense of English law, courts in the UK will generally give prenups significant weight – and they are often followed – if they are drawn up properly and are fair. When considering the fairness of a prenup there are some important points that a Court will consider:

  1. You must both have entered into the agreement willingly.
  2. The agreement should be reached and signed well in advance of the wedding – 28 days as a minimum.
  3. There needs to be full disclosure of your financial position to your partner and vice versa.
  4. You must both be provided for.
  5. Both of you should have the benefit of legal advice to make sure you fully understand what you are agreeing.

If you want to protect specific assets, such as a business or pension, it is not as simple as both signing a piece of paper to say the business or pension is yours.  For the prenup to be fair one of the things you will have to demonstrate is how you will both be provided for if you separate.  You can ringfence an asset, but only if you have an alternative way for your spouse to be compensated or they have assets of their own that they can keep and therefore that would be fair.  If the prenup meant one spouse would be comfortable, but the other was in financial hardship that might be problematic for the Court and the prenup could be disregarded. 

Equally, if there are not sufficient assets to go around without including your business or pension, you need to be aware of that before getting married or becoming civil partnered, so there are no nasty surprises later.  However, there are lots of options you can consider including limiting your spouse’s share to a percentage of the value added after you wed so a prenup may still give you some protection.

What if our circumstances change?

If you got married without a prenup or your circumstances have changed, you can prepare a Postnuptial Agreement in its place.  These are like prenups but can be put in place after the ceremony.  Similar rules apply in that they must be fair, legal advice should be taken and it is important that no one feels any pressure to sign.  It is always advisable to review your prenup if you have children as the Court is likely to disregard any provisions within it that could be considered unfair towards children.

Legal Advice

It is not only advisable to take legal advice when preparing a prenup, but it is necessary for both people to obtain independent legal advice on the fairness of the agreement if you want it to stand up in an English Court.

If you would like to speak confidentially to our team of family lawyers you can call 020 7993 2936 to schedule an appointment or make a Contact Request here

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Why do couples need a Cohabitation Agreement?

The simple answer is to protect each other.  Despite the widespread misconception about "common law marriage", you are not legally recognised as a couple unless you are married or in a civil partnership and you will have far fewer legal rights.  This can make things difficult if you separate and disagree on how to divide your assets and possessions or who is responsible for debts, especially if there is no documentation to verify your position.

Because the law for couples who cohabit is complicated and uncertain, disputes between unmarried couples can be more complicated and take longer to resolve through the court than if the parties were married. The costs involved can force people to walk away from what should be theirs or pay debts that should not be theirs, making an already difficult situation even worse.

A properly prepared Cohabitation Agreement can protect you from this.  As it is a legal contract, it will usually prevent the need to go to court, or at least drastically reduce your time before a Judge.

In addition, the discussions you have when you prepare your Cohabitation Agreement will help to ensure you have realistic expectations about the contribution you will each be making to the relationship. 

Cohabitation Agreements are also an effective way for unmarried couples to protect children (further information below).

What happens if I move into my partner’s property or they move into mine?

This can be a tenuous situation for both of you, so it is advisable to set out your intentions from the outset.

A common misunderstanding occurs when the non-owner pays the owner a monthly sum which they believe is a contribution to the mortgage entitling them to a share of the property, but the owner considers this to be rent with no associated property rights.  You should be aware that if the non-owner can show that they have paid towards the property, through the mortgage, utility bills or for any work that increases its value (a loft conversion for example), they could claim a beneficial interest if the property were sold.  This is not guaranteed, but it is advisable not to leave it to chance.

Another situation to be aware of should the relationship end, is that you would have to give/be given (depending on if you are the property owner or not) reasonable notice to find somewhere else to live and in the meantime, the non-owner may be legally entitled to remain living at the property. This notice period can be determined by the Courts, so it makes things simpler if you have already agreed a set period within a Cohabitation Agreement.  If the non-owner does not leave after the agreed period, they would be considered a trespasser and could be evicted from the property.

Buying or renting a new house together?

If you are renting a property together it is recommended that both names are put in the tenancy agreement to protect you both.  This will ensure you are jointly liable for the rent and prevents one person from evicting the other if there was a dispute.  This can be important for couples renting with children who need to ensure that their children will not become homeless overnight, and they cannot be forced to leave them.

If you are buying a property, there are two ways to purchase it:

  1. Joint Tenants: this is where both parties own the property equally (50:50) and if one owner dies their share of the property automatically passes onto the other. This is usually recommended to couples, but it does not enable you to adjust your share of the property so it may not be suitable if one partner has or will be investing significantly more than the other.
  2. Tenants in Common: this enables partners to choose their share of the property, which means that one person might have a bigger share than the other, or there could even be other investors such as parents. This does not affect either person’s right to live at the property, it simply reflects the percentage of the value you would each be entitled to should the property be sold. It is recommended that you both sign a Deed/Declaration of trust to help establish a clear understanding of financial responsibility towards the property – but this does not remove the need for a Cohabitation Agreement. You should also be aware that your share would not automatically pass to your partner if you passed away so you would need to prepare a Will if you wanted this to happen.

How can a Cohabitation Agreement protect children?

If you decide to have or already have a child together, the Mum will be granted Parental Responsibility for the child automatically – which is the rights and responsibilities to care for, make decisions on behalf of, protect and provide for a child.  Dad’s will only gain parental responsibility by being named on the birth certificate, being married to the mother at the time of birth or entering in a parental agreement.  This can leave Dads and children vulnerable.

A Cohabitation Agreement is a useful tool for parents to agree their roles and responsibilities towards their children, over and above the legal requirement to provide for them, should they separate.  You can include all aspects of care for your children, including where they would live and how much time they would spend with each parent. 

A Cohabitation Agreement is particularly important if you have a shared expectation that your children will be raised in a lifestyle that can only be afforded by one parent, for example if they are receiving a private education funded by a parent with higher earnings, and you wish to ensure that this will continue irrespective of your relationship.

If you or your partner has a child from a previous relationship, you are not recognised in the eyes of the law as their guardian or stepparent (as you would be if you were married to their parent) and do not have any rights or responsibilities towards them.  There are several routes to agreeing a level of responsibility including setting this out in a Cohabitation Agreement.

Can we change our Cohabitation Agreement once it has been signed?

Your Cohabitation Agreement should grow and change with you.  As long as you both agree, it can be modified at any time but should almost always be updated if there are significant changes to your lives, for example if a child is born or if someone’s financial situation changes.  Keeping the agreement up-to-date ensures you remain on the same page about your roles and responsibilities, as well as minimising the possibility of a protracted legal dispute.

The law may also change, so regardless of changes to your situation, it is advisable for a professional to review your arrangements from time to time to ensure they are still valid.

If you decide to get married or become civil partnered your Cohabitation Agreement will become invalid, so you may wish to replace it with a Pre-Nuptial or Post-Nuptial Agreement.

Final thoughts

Although it does not come naturally to consider the end of a relationship when you are at the beginning, it should be easier to agree what is fair when you are working as a team.  For most people preparing a Cohabitation Agreement together is a bonding experience that ensures they are on the same page and have realistic expectations about their future together. 

If you are in a loving relationship, it is also advisable to prepare a Will to protect your partner, who will not be your legal next of kin, as well as to ensure that any children can be looked after in the way you intend.  You may also wish to nominate your partner as a beneficiary of your pension or for any death in service benefit that you might receive.

Legal Advice

For further advice on cohabitation agreements or disputes, please contact Louise Allard or Sabrina Bailey on 020 7993 2936 or complete a contact form.

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What is the Difference between marriage and civil partnership?

Although the result is largely the same, there are key differences in the ceremony and administrative aspects that may be fundamental to you as a couple, particularly regarding the involvement of your parents.

It is also important to note that married couples cannot call themselves civil partners and civil partners cannot call themselves married for legal purposes. So, it is important to make the right choice for you and your partner.

Marriage

Marriage is a union between two people who sign a legally binding marriage contract.

Historically marriage was only available to heterosexual couples in UK, but legislation allowing same-sex marriage came into force in 2014. This means that anyone who satisfies the following criteria can get married:

• Aged 16 or 17 with parental consent
• Aged 18 or over without the need for parental consent
• Not already married or in a civil partnership
• Not closely related.

The formation of a marriage is solemnised by saying a prescribed form of words. This is different from civil partnerships where there are no required words.

Marriages can be conducted through either a civil ceremony in a registry office or other approved venue, or a religious ceremony. If you would like a religious ceremony, the religious organisation must agree to solemnise same-sex couples according to its rites. Unfortunately, many religious bodies will not perform same-sex marriage.

Marriages are traditionally registered on paper and you sign the hard copy register held at the venue, as the final step in your marriage ceremony. This is different from civil partnerships, where the details are only recorded in an electronic register.

Civil Partnership

Civil Partnerships were introduced in 2004 to enable same-sex couples to form a legally recognised partnership and gain the same legal rights as married couples. Initially, civil partnership was only available to same-sex couples, but it was made accessible to heterosexual couples in 2019.

One of the differences that is very important to some couples is that the formation of a civil partnership is an entirely civil event. It is not currently possible to have a religious civil partnership formation. This does not mean that you and your partner cannot include religion if you wish to do so.

If your religion allows, you could hold a religious event, such as a blessing, following the formation of your civil partnership. It is also worth noting that the formation of your civil partnership can take place on religious premises, so long as the formation itself remains secular.

Another key distinction is that the certificate of a civil partnership includes the names of the mother as well as the father of each of the parties. Whereas, marriage certificates include only the name of the fathers.

Depending on your relationship with your parents and the involvement you would like them to have in your union, this could be a significant factor.

Ending Your Relationship

Although this is probably the last thing on your mind, you should be aware that how a marriage and civil partnership come to an end is a little different.  When you end a marriage you apply to court for a divorce, when you end a civil partnership you apply for a dissolution.   For both you must show that the relationship has broken down irretrievably by proving one of a number of facts, such as unreasonable behaviour (meaning that you cannot be reasonably expected to keep living with your partner) or a long separation. 

Adultery cannot be used as a fact in dissolution, but it can be used as a fact in divorce for opposite-sex couples.  It cannot be used by same-sex couples because the legal definition of adultery involves voluntary intercourse between two people of the opposite sex.  However, divorce law is set to reform and this will eradicate the differences.  From April 2022, all couples should be able to get divorced on the grounds that their relationship has broken down without the need to attribute blame or prove certain facts.

The Decision

The choice between marriage and civil partnership is entirely dependent on which one suits you and your partner’s wishes best. If traditional vows are important to you, marriage may be the preferred option. On the other hand, if you are more attracted to a civil event and would like your mother's details recorded, you may prefer to have a civil partnership.

Whatever you decide, if you have pre-existing assets or children from a past relationship, we would always recommend that you and your partner prepare a nuptial or pre-civil-partnership agreement before you tie the knot.  Read more about Pre-Nuptial and Pre-Civil Partnership Agreements.

Legal Advice

For legal advice relating to marriage or civil partnership, please contact Louise Allard or Sabrina Bailey on 020 7993 2936 or complete a contact form.

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Moving in together is an exciting step, but you should be aware that your legal rights as one half of a couple will be different than if you were married.  Generally you will have far fewer rights if you have not formalised your relationship in the eyes of the law.

For those who simply do not believe in the institution of marriage, civil-partnership is now an option which allows you to enjoy similar legal rights without the religious ceremony or vows.

If you are living with someone you care about, we strongly recommend that you enter into a Cohabitation Agreement to protect each other and any children you might have.

If you are planning to get married or civil-partnered and have business interests, a well-established career, family wealth or children from a past relationship, we recommend that you consider a Pre-Nuptial Agreement or Pre-Registration Agreement

The discussions that you will have when you prepare your Cohabitation Agreement, Pre-Nuptial or Pre-Registration Agreement will help to ensure that you have reasonable expectations about your respective roles in your relationship.

 

Examples of Recent Cases

  • Advising on a Pre-Nuptial agreement to be drafted in preparation for our client’s marriage where both parties had existing children and significant assets.
  • Advising the son of a wealthy international family on a Pre-Nuptial Agreement where there were jurisdictional issues to consider as well as future inheritance and significant wealth acquired prior to the relationship.
  • Helping a seriously ill client to negotiate a settlement in excess of 50% of the value of a jointly owned property following the breakdown of a long-term relationship.
  • Achieving a favourable result through negotiation for the applicant in a complicated cohabitee dispute where both parties had invested financially, but land and property had been purchased in the respondent's name alone.
  • Resolving child maintenance and care disputes involving two children of an unmarried couple who both have SEN and sensory disorders and agreeing maintenance at a more appropriate level than required by law.

Do I really need a Cohabitation Agreement?

For unmarried couples living together, a Cohabitation Agreement clarifies the ownership of shared property and assets. 

The discussions you will have when you prepare your agreement ensure you are both on the same page and have realistic expectations about the contribution you will be making to your relationship.

It will also help to protect you from unwelcome surprises down the line, which can be important if you have or intend to have children. 

You can read more about preparing or varying Cohabitation Agreements here.

Do I need a Pre-Nup / Pre-Registration Agreement?

A marriage or civil-partnership is a legal contract which essentially splits your assets 50/50 with your partner.  If this does not reflect your mutual intentions, it is sensible to confirm you are in agreement by setting out your finances in advance. 

We always recommend Pre-Nuptial Agreements and Pre-Registration Agreements for business owners and anyone with family wealth or pre-existing assets, such as properties and pensions, as well as parents who wish to ensure that children from a previous relationship are protected financially.  For your agreement to be upheld, it must meet certain criteria, learn more here.

When might I need a Post-Nup or Post-Registration Agreement?

A Post-Nuptial Agreement is a legal contract drawn up between you and your partner after you are married or registered as civil-partners.  They are commonly used in place of a Pre-Nup, or where there is a change in circumstances which is not addressed in an existing Pre-Nup.  For example, a Post-Nup may be required if you go into business with another person to prevent the business from being considered as part of your marital pot.

Learn more about how your relationship can affect your business by watching the replay of our webinar for Fresh Business Thinking here.

For an initial discussion about your situation, please call us on 020 7993 2936 or Get Started Online.

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In a time when both our business models and personal relationships are being tested to their limits, it is important to understand how the breakdown of a relationship can affect your business.

This webinar is essential viewing for all entrepreneurs who are:

  • Married or considering marriage in the future
  • With a business partner who is married or might get married in the future
  • In business with their romantic partner
  • Employing their romantic partner
  • With business loans secured against a jointly owned residence

Because…

Your spouse could “own” 50% of your business, even if they have never been involved with it.

What does this mean?

If you separate you might need to “buy them out” or give them shares in the business.  There are also tax implications.

In this webinar we will consider:

  • Real-life separation case studies from business owners who started their businesses before and during marriage, including horror stories that you will want to avoid.
  • Cost-effective legal steps to help you protect your business whilst ensuring you can provide fairly for your spouse, including pre-nups, post-nups, cohabitation agreements and trusts.
  • Practical tips for anyone considering divorce who does not have protections in place.
  • Legal strategies to negotiate a fair outcome for everyone.

Why can we talk to you about this?  As law firm specialising in Family and Private Wealth firm, we help entrepreneurs, directors and investors to protect their professional interests from personal life events, so they can achieve their lifetime ambitions and leave the legacy they intend.  We also deal with the legal fall-out for those who do not take these steps.

Other Allard Bailey webinars for Fresh Business Thinking:

  1. How to use the law to align your personal and professional goals so that you can maximise growth in all areas: View here.
  2. How to protect your business from events in your personal life that can have a significant impact, such as your unexpected incapacity, death or personal debt: View here.
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Do I need a Prenup?

No one getting married wants to think about separation, but no one wants protracted litigation should a relationship break down. Without a prenup the Courts have a very wide discretion as how they distribute property and income, regardless of the legal ownership, or consideration of who brought what into the relationship. The best way to ensure you protect yourself is to enter into a prenup.

Prenups and postnups are often used by couples who wish to ringfence property or business assets, existing family wealth and investments. Another common reason couples prepare a prenup is to make sure their existing children can benefit from their estate.

Are Prenuptial Agreements enforceable in the UK?

Since the landmark Radmacher case in 2010 prenups are generally enforceable as long as they are fair. 

How do you know if the agreement is fair?  Some basic principles include:

  1. It should be reached and signed well in advance of the wedding 
  2. Both of you should have the benefit of legal advice to make sure you fully understand what you are agreeing
  3. There needs to be full disclosure of your financial position to your partner and vice versa.     

You can learn more about ensuring your prenup will be considered fair by the Court here.

Do I need legal advice?

If you are thinking about entering into a prenup or postnup it is important to take legal advice so that you can be sure that what you are agreeing to is fair, legally possible and tax-efficient.

The Courts are unlikely to uphold an agreement that has been signed without both parties having the benefit of legal advice.  Only with legal advice can you be confident that the agreement should be enforceable.

Legal Advice

For further advice on obtaining a pre-nuptial or post-nuptial agreement, please contact Louise Allard or Sabrina Bailey on 020 7993 2936.

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When you run a business there is always an interaction between your professional and personal life, so it is important to understand how the decisions you make in your private life can impact your business.

This is the second in a three-part webinar series in which we look at how to legally align your professional and personal interests so that:

  • the value of your wealth is maximised
  • your business is protected from significant life events
  • you can achieve your ultimate life goals.

In this webinar we will focus on how to shield your business from unexpected life events that can have a significant and sometimes catastrophic impact.

You will learn about the Four Ds and how they can affect your business. In all scenarios we will discuss cost-effective legal tools to protect your business, when and how to use them.

  • Death:
    • What can happen to your business if you die without a will?
    • How to ensure your business can continue to operate without you
    • The difference between a Business Will and a regular Will
  • Disappearance:
    • Can anyone fill management functions if sudden incapacity from an accident or illness causes you or a business partner to temporarily disappear from the business?
    • How to minimise the operational impact of temporary incapacity using a Business Lasting Power of Attorney
    • How to keep the business running, or allow it to be sold, if you experience long-term incapacity
  • Divorce:
    • Is your spouse entitled to 50% of your business?
    • How to ring fence pre-existing assets including your business
    • Ways to shield your business from the financial and emotional impact of relationship breakdown
  • Debt:
    • When your personal finances will affect your business
    • How company structures and Trusts can shield your business from personal creditors

In the final webinar of this series, we will look further at how your family and personal relationships can affect your business and how effective planning can minimise this.

A replay of the first webinar which explained how you can use the law to align your personal and professional interests and maximise growth in all areas can be viewed here.

Why can we talk to you about this? We specialise in helping entrepreneurs, directors and investors to protect their professional interests from personal life events, so they can achieve their lifetime ambitions and leave the legacy they intend. We also deal with the legal fall-out for those who do not take these steps.

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Income Tax
Marriage Allowance allows married and civil partnered couples to transfer part of their tax allowance to their spouse, which can reduce their tax bill by up to £250 each year.  To benefit as a couple, one spouse would need to earn less than the other and have an income of £12,500 or less.  This is not available to cohabiting couples.

Capital Gains Tax
Capital Gains Tax is usually paid on the net gain arising from a disposal of assets.  Assets gifted or sold to a spouse do not attract Capital Gains Tax.  However, if the assets are sold at a later stage then the base value used for the calculation will be the value at which the disposing spouse acquired the asset.

Again, this spousal exemption does not apply to cohabiting couples.  This could mean that adding your partner’s name to a property that does not qualify for principal private residence relief will attract a Capital Gains tax charge of 18% or 28%.

Pensions
Generally, pensions make provisions for a surviving spouse to receive payments when the pension contributor dies.  There are no automatic rights for cohabiting couples.  Instead, the partner would have to be specifically nominated as a beneficiary in order to access the funds in the pension.  Whilst companies and employers are making changes to their pension schemes to take cohabitation into account, not everyone has, and it is always advisable to ensure that you understand exactly how your pension would work in relation to your partner.

Married and civil partnered couples may also receive part of their spouses Additional State Pension (also known as State Second Pension or SERPs).  This benefit is not extended to a cohabiting couple.

Inheritance Tax
Inheritance tax is the area where cohabiting couples pay significantly more than a married or civil partnership couple.

Spouses are able to transfer everything they own to their spouses on death with no inheritance tax implications.  If this happens then any unused nil rate allowance and residential nil rate allowance (subject to linear decedents inheriting) can be used on the death of the second spouse.

In contrast, if a cohabiting partner inherits any assets, they will have to pay 40% tax on any inheritance above the nil rate allowance (currently £325,000).  The residential nil rate allowance will not be available and unused allowances cannot be transferred.

If a spouse dies without leaving a Will, the intestacy rules enable the surviving spouse to inherit some, if not all, of the deceased spouse’s estate.  In contrast, there is no automatic provision for cohabiting couples under intestacy rules.  The impact can be enormous if assets are not jointly owned.

What can you do?
Couples who are simply opposed to the institution of marriage have the option to enter into a civil partnership to take advantage of the tax reliefs.  Those who prefer to continue living as a cohabiting couple are advised to ensure that their estate is managed in a tax efficient manner and they have a valid Will to protect their partner and any children.

You can learn more about the importance of Wills for safeguarding your children’s future here.

LEGAL ADVICE

If you require legal advice or assistance to on tax, trusts, wills or estate planning please contact Sangeeta Rabadia or call 020 7993 2936 to request a consultation.

*according to the latest information released by The National Office of Statistics, which reports a 25.8% increase in the decade 2008 – 2018.

 

 

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Guardianship: Who Will Look After Your Child?

When both parents pass-away whilst a child is still underage, there is no one with parental responsibility who can take over the role of a parent.

Parental responsibility is a term used to describe the legal rights and responsibilities of a parent, which include housing, protecting and maintaining their child.  All mothers and most fathers gain parental responsibility when a child is born.  In some situations, such as adoption, parental responsibility will later be transferred to other responsible adults.

If there is no-one with parental responsibility to take care of a child, it will fall on the authorities to choose an appropriate caretaker. You may be surprised to hear that family members are not necessarily the people who end up caring for a child and, although they will try, it is not always possible for the authorities to house siblings together.

By making a valid Will, you can name those that you most trust to take care of your child as legal Guardians in the event of your untimely death. Furthermore, you can specify your wishes in terms of their upbringing to ensure they are cared for in the way you intended.

Nominating guardians can be particularly important in complicated family situations where parents are separated and it may not be appropriate for the other parent to assume care of a child.

It is of course important to discuss your wishes with your preferred Guardians to ensure that they are both willing and able to fulfil this important role.

Your Child’s Inheritance

If you do not have a valid Will in place, the distribution of your assets will be governed by intestacy laws, which may be contrary to your intentions.  A valid Will ensures that your assets are distributed in accordance with your wishes.

If you are married or in a civil partnership, the majority of your estate would usually be inherited by your legal partner (this is the case if there are children from the relationship).

If you do not have a legally recognised spouse, your estate would usually be divided equally between your children.  However, English law does not allow for assets to be directly inherited by children until they reach the age of 18.  A ‘trust’ is therefore imposed when assets are left to minors in your Will.  You appoint executors or trustees who are responsible for looking after those assets until each child reaches a nominated age. In the absence of a Will, the law decides who becomes responsible, and again, it may not be the person whom you would personally entrust with such a responsibility.

If you are in the process of separation, you should be aware that your former spouse remains one of your heirs until your relationship has legally ended and could inherit your estate instead of your children.  Click here for further information on the importance of updating your will as soon as you decide to separate.

Even after you are divorced, if your ex-partner has parental responsibility, they could be appointed to look after your assets on behalf of the children. Some people will be comfortable with this, others will not.

Wills are not only for those with significant assets, they are a key tool in ensuring your children and their inheritance are protected.  It is advisable to use a solicitor to draft or at least check your Will to ensure that it will have the effect that you want.  Mistakes can mean that your wishes are not followed.

Legal Advice

For further information on preparing or contesting a Will please contact Sangeeta Rabadia or call 020 7993 2936 to schedule a virtual appointment.

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What if the paying parent’s income has reduced?
While the legal obligation for child maintenance is solely income based, it is advisable to consider the needs of the children as well as the situation of the resident parent before making changes. This is a difficult time for many children who are adjusting to staying at home. An unnecessary change in finance can prove detrimental to their wellbeing, so it is important to remain as child focused as possible. Because of this, some parents will choose to keep up payments.

If you pay child maintenance but cannot keep up payments whilst meeting your own basic needs, we recommend that you have an initial conversation with your former partner.  If you understand each other’s situation you may find a compromise such as reducing payments for a short period, or deferring payments while waiting for any applicable government finance schemes to come through.

It is important to note that if you are paying child maintenance through the Child Maintenance Service (CMS) they will only consider a formal adjustment if your salary has changed by at least 25%.

How long should any adjustments continue?
Whilst lockdown feels long, please remember that it is only a temporary measure and many income reductions will also be temporary. Any changes to child maintenance should reflect this.

Where safe to do so, we encourage parents to communicate and resolve financial issues together so that animosity is not created and does not continue when lockdown lifts. In all cases, changes should be recorded in writing so that evidence can be provided if either of you raises issues with the variation at a later date.

What if the paying parent has lost their job?
In this situation child maintenance payments could stop. Parents with capital may choose to continue supporting their children, others will be unable to do so.  In some circumstances, the non-resident parent may be able to provide valuable practical help instead. This could mean increasing their time with the children so the resident parent can continue working, or assisting with home schooling older children. Other practical assistance like providing a food shop, home school supplies or entertainment activities may contribute towards meeting the children’s overall needs during this difficult time.

What if our arrangement is more complicated?
Child maintenance is not always straight forward. In addition to family-based arrangements, there are more complicated arrangements through the Court or CMS.

Below we answer two specific questions about child maintenance payments.  The answers will provide some guidance on steps that you can take to remedy your own situation or when to seek help from a legal professional.

Question 1: My ex-partner has been furloughed and says child maintenance will stop

My ex-partner pays child maintenance through the Child Maintenance Service (CMS). His company has furloughed him and he sent me a message saying that child maintenance will stop immediately. I didn’t receive the payment for this month. When he has missed payments before I spoke to the CMS and they chased him, but I can’t get through to speak to them about this on the phone.

Answer: Many employees have been furloughed using the government Coronavirus Job Retention Scheme. Under the scheme the government pays 80% of the employee’s wages and the company can optionally chose to pay the remaining 20%.

If the paying parent has been placed on a furlough then it should not trigger any change in their weekly child maintenance liability. This is because the CMS only consider changes of income when they have increased or decreased by 25%.

The CMS is open, but experiencing a shortage in staff as many have been redeployed to work on speeding up Universal Credit claims. A reduced phone service is operating between 9am – 3:30pm Monday to Friday only. To ensure that the service is not overloaded they have notified all users that the service will only take calls in certain circumstances and will not deal with missed payments over the phone. If a payment has been missed or is less than expected, this must be reported through CMS online portal.

The advantage of notifying CMS through the portal is that evidence of non-payment can also be uploaded. This can include any messages from the paying parent stating that maintenance will be unilaterally decreased to nil, and bank statements to show incorrect funds have been received.

Unfortunately, due to delays caused by the global pandemic, CMS estimates it will take 6 – 12 weeks to process enquiries. However, rest assured that when CMS can deal with your case, they will be applying those arrears.

Question 2: I cannot afford to pay my court ordered child maintenance

I pay child maintenance for my two children which was agreed as part of a court order. I’m in a real financial bind with the pressures of the pandemic and I’m worried I could fall into debt. I just can’t afford to make ends meet and keep up payments on the place that I live if I also need to make these really high payments for the children. Can I vary the payments?

Answer: The options to vary child maintenance payments recorded in a Court Order very much depend on when the Order was sealed by the Court and the clauses contained in the drafting. Factors like the date, special clauses and the possibility of enforcement need to be considered.  We will look at each of these in turn.

Date – Any Court Order made in England and Wales between 5th April 1993 and 6th April 2002 (where the receiving parent is not in receipt of income support) must be varied through the Court as they retain jurisdiction.

If an Order was made after 6th April 2002 and has passed its first anniversary, the child maintenance element can be brought to the Child Maintenance Service for an assessment. The matter will only be considered formally transferred once the CMS have received the appropriate fee and full details of all parties. Once this happens the child maintenance clause in your Order becomes null and void.

It is also important to note, that CMS calculates on the previous tax year (2019-20) meaning that child maintenance liability could be increased or decreased when compared to your original Order. A recalculation is possible if the paying parent’s income has changed by 25% since the last tax year or if you are now in receipt of benefits.

If an Order is less than one year old, the child maintenance clause is binding and cannot be transferred to CMS.  Payments must continue until the first anniversary of the Order unless there is agreement of both parties or an application to vary is granted by the Court.

If you need to make a change, we recommend that you first contact the receiving parent to explain the situation. If that is not possible, or the desired progress is not made, a mediator or family solicitor could aid the negotiation process. We strongly recommend that any negotiation achieved should be recorded in writing, ideally in the form of a Consent Order and lodged with the Court.

In matters where negotiation is unsuccessful, it would be appropriate to ask the Court to review the Order, to decide if child maintenance should be varied.

Special Clauses – Some Orders contain special clauses such as contractual agreements and ‘Christmas Orders’.

Contractual arrangements can be stand alone or in addition to a Court Order. Where a parent has signed a contract to make maintenance payments, then varying payments would be breaching the contract. As changes to payments can result in serious repercussions, including being ordered to pay damages, judgement summons and potentially even bankruptcy, it is essential to seek legal advice.

Some orders contain what is known as a ‘Christmas Order’. This means that the child maintenance element of the Order renews annually and is therefore never over 12 months old. This means you cannot transfer the matter to the CMS. Any change to this Order would need to be by agreement of both parties and recorded in a further Consent Order or by application to the Court.

Risk of Enforcement – We strongly recommend taking take legal advice before making unilateral changes to Court Ordered child maintenance payments. This is because Court Orders made in the jurisdiction of England and Wales (while the paying party resides there) could be subject to an Enforcement Order.

A judge hearing such matters has a wide range of enforcement actions available to them including: ordering that any maintenance owed can be taken directly from earnings; placing a change on property or other assets; sending bailiffs to seize belongings; freezing funds in bank accounts.

As the repercussions are so serious and can have long term effects on your financial situation, it is important to take advice from a specialist at the earliest opportunity.

In summary, where there is a Court Order in place for child maintenance it is essential that you obtain the benefit of early advice.

Legal Advice

At Allard Bailey Family Law we can assist in leading any negotiations with your former partner, our extensive experience with both variations and enforcements allows us to provide guidance on what may be acceptable to Court.

To book a virtual consultation or telephone appointment with one of our team, please call 020 7993 2936.

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In this blog, we look at what domestic violence is, what practical steps can be taken, wider support and legal remedies that are available to people facing domestic abuse.

***If you or someone else is in immediate danger please call 999 and ask for the police. If you are unable to talk you can use the Silent Solution of calling 999 and pressing 55 when prompted.***

What is domestic abuse?

Domestic abuse can be physical abuse, sexual abuse, emotional or psychological abuse, financial control, harassment and stalking, online digital abuse, coercive control. It can be one isolated incident or a pattern of incidents.

The most common form of domestic abuse is between people in a romantic relationship, but it can also cover abuse between family members and adolescent to parent violence and abuse.

The SafeLives campaign reports that people often do not recognise that they are being abused and found that people usually endure 35-50 counts of domestic abuse for 2-3 years before seeking help and support.

What Practical Steps can a Victim take during Lockdown?

Leave the Home: The Government renewed lockdown advice on 16th April 2020, permitting people who had an argument at home to leave and seek support, including staying in a refuge, with a friend or relative for a short period. This can often prevent things from escalating and provide necessary perspective on a situation.

Discuss: If it is safe to do so, the person suffering abuse can discuss this with the person perpetrating the abuse. They may not have recognised their behaviour is abusive and may be willing to access specialist support to make immediate changes.

Learn More: There are lots of websites where you can learn more about the abuse that is being endured and find steps to keep safe, such as having an emergency exit plan. If using these websites, please consider if the abuser can view your search history as this could place someone in more danger.

Update your Emergency Plan: If an emergency plan is already in place, please make sure it is Covid-19 suitable, it may need to be altered as pubs, cafes, restaurants and hotels are closed and public transport is not running at full capacity.

Download Hollie Guard: The Hollie Guard App was created by the family of Hollie Gizzard who believe it could have saved her life. It works by turning a smart phone into a personal safety device, alerting nominated contacts or the police that a person is in danger. It can also record video and audio until the police arrive and if necessary, the evidence is admissible in court. It can be downloaded to any smart phone.

Contact a Helpline: There are many helplines available if it is safe for you to talk and the abuser does not have access to your phone call history. There are help lines tailored for men, women, parents, elderly and LGBTQ communities. The National Centre for Domestic Violence deals with abuse from every background, it is a 24-hour confidential service for those affected by domestic abuse. They can help callers understand if abuse is occurring and talk them through steps going forward. This can include finding a refuge or shelter, notifying the police or obtaining an injunction. They can also be contacted online. Further information on support and resources is available here.

Find a Safe Space: There are also schemes being piloted to provide a ‘Safe Space’ in public places, such as supermarkets and pharmacies, which will allow people to ask for help in confidence. Look out for notices about Safe Spaces in your community.  Safe Space Update November 2020:  Safe spaces are now available at Boots UK, Superdrug Pharmacy, Morrisons Pharmacy and many independent pharmacies.  Go to the healthcare counter and ask to use their Safe Space.  There will be specialist domestic abuse support information for you to access, so you can make a call safely.

What Legal Steps can a Victim take?

There are many legal remedies that can benefit those affected by domestic abuse. Mediation could be helpful if you want to explore the possibility of dividing a home to make it safer to continue living in, or to find agreement that a party move out of the property.

Solicitors can provide support with negotiations and assist with agreements to make things safer, such as agreements about behaviour and division of a property.

It may be that the situation could benefit from an injunction order from the Court. There are two main injunctions to protect from domestic abuse a Non-Molestation Order and an Occupation Order.

Who can apply for an injunction?  A person can apply for an Order if they are a victim of domestic violence and the person they wish to seek protection from is someone that they are having/had a relationship with, a family member or someone that they live or have lived with.

This is known as ‘associated persons’ and extends to married couples, cohabiting partners, girlfriends/boyfriends where the parties have been together for over 6 months, immediate family members that cohabitate and certain relatives in particular circumstances.

If the applicant is not an associated person, they may be able to seek protection under the Protection from Harassment Act 1997.

What is a Non-Molestation Order?  A Non-Molestation Order is often referred to as an injunction order or on TV as a restraining order. The best way to view a non-molestation order is as a legal way of saying ‘STOP!’.

A Non-Molestation Order is intended to prevent the Respondent from perpetuating further abuse to the Applicant, their children and their property. The Order can prohibit the Respondent from being within a set distance of the applicant’s home.

If found in breach of a Non-Molestation Order a person can be arrested without a warrant. They may be either fined, imprisoned for up to 5 years or both.

What is an Occupation Order?  An Occupation Order can protect a person from domestic abuse by excluding the preparator from the property. Like Non-molestation Orders they can be applied for by those affected by abuse by ‘associated person’.

Where it is not possible for the Court to order an abuser to leave the property, the Court can order a Zonal Occupation Order. This essentially divides the home between the parties so that each may continue enjoying the property peacefully.

How long do the Orders Protect?  How long either Order lasts depends on the situation. It can last from a week up to a year. If the issues persist on expiry, the Order can be extended and in some extreme cases the Orders can last indefinitely.

In an emergency situation both Orders can be applied for quickly and without notice, meaning that the abuser is not informed that their victim is applying. Although a Judge will also want to hear their version of events shortly after to decide whether it should remain in place.

At Allard Bailey Family Law we pride ourselves on being a safe pair on hands during a personal crisis. Our specialist knowledge and proven results with both Non-Molestation Orders and Occupation Orders are available to support you through this difficult time.

Legal Advice

If you need advice on domestic abuse issues or any other family law matter during the Coronavirus lockdown, you can book a video or telephone consultation with one of our team by calling +44 (0)20 7993 2936 or completing the enquiry form on this page.

For help with urgent injunctions please contact Sabrina Bailey directly on +44 (0)7507 343443.

***If you or someone else is in immediate danger please call 999 and ask for the police. If you are unable to talk you can use the Silent Solution of calling 999 and pressing 55 when prompted.***

Additional Resources

Further information on support and resources, including specific organisations helping men, women and people from different backgrounds, is available here.

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What happens to my estate if I do not update my Will before my divorce is finalised?

If you have a Will naming your spouse as a beneficiary, it will remain valid until your divorce is finalised with a Decree Absolute.  This may only take a few months, but it can also take years.  Should anything happen to you in the interim, your estate will be administered according to your Will.

It is common for spouses to be an executor as well as the main beneficiary of each other’s Wills.  If you do not want them to be in charge of your estate should anything happen to you, you should update your Will as soon as possible.

Does my divorce or dissolution invalidate my existing Will?

No, it does not.  If you do not update your Will after your relationship has legally ended, any gifts to your ex-spouse will fail, but there may be other unwanted consequences.  The assets in your Will originally intended to pass to your ex-spouse may be governed by intestacy rules, which could conflict with how you would have wished them to be distributed.

If your ex-spouse was the named executor of your estate, this may mean that you are left without an executor and left to the law to decide who will be responsible for your assets.

What happens if I do not have a Will?

In UK, if you do not have a Will your spouse or civil partner is one of your (or possibly your sole) legal heirs and would remain so until your relationship has legally ended.  Even if you have separated with a court order, they will remain an heir until your relationship has legally ended

What does this mean for my Beneficiaries?

In all these situations, your ex-partner could benefit from your estate and it would fall to your intended beneficiaries to challenge this at a time when they should be allowed to grieve.

We would therefore strongly recommend that you review your Will as soon as it is clear your relationship is ending.

Legal Advice

You can update your Will as often as you want or need to reflect your wishes.  To protect your Will from challenges you should always use a professional Will writer to do this. For an initial discussion about your situation, please call 020 7993 2936.

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In the days leading up to a wedding there are fewer statements less romantic that asking your betrothed to take some independent legal advice about a prenup.

No one wants to think about separating before they are married, but the reality is relationships do break down and pre-nuptial agreements (or prenups) are increasingly becoming a feature of modern marriages and civil partnerships.

It can be tempting to concentrate on the dress and the party, but marriage is a contract and a contract that confers significant rights on your intended.    If a marriage or civil partnership does breakdown, then those without a prenup run the risk of years of protracted litigation over the marital estate.  If you have significant assets before you marry, or perhaps you want to ensure existing children are looked after no matter what, then a prenup might be worth considering.

A prenup allows couples to have a degree of self-regulation over their affairs and set out from the outset what will happen if they separate.   It isn’t about trying to make sure your new spouse doesn’t get anything.  On the contrary, it must be fair from the outset to be valid, and it allows parties to decide on what is fair for themselves.

Historically prenups have not been recognised in the UK, but in 2010 the landscape changed.  Although prenups are not legally binding the case of Radmacher v Granatino set the precedent that prenups should be upheld if they are not unfair.

In 2014 the Law Commission recommended that prenups should be legally binding.  That hasn’t happened yet, but the smart money is on that being a matter of time.  So where does that leave us today.

As long as certain condition are met, then the current view is that prenups should be upheld.  If no prenup is in place, then the starting point is a 50/50 split of assets.   With that in mind, taking some legal advice before you get married might save a lot of heartache in the future.

So what are the conditions that need to be met and what is fair anyway?

What you should consider:

  1. Both parties need to speak to a solicitor. Your prenup should be drawn up by a solicitor and both parties should have had an opportunity to take independent legal advice.  Most solicitors are now willing to offer a fixed fee to draft a prenup so costs don’t unnecessarily escalate.
  2. The prenup should be signed at least 21 days before the wedding. The scene lifted from the movies with the bride signing in the back of the car is likely to result in an invalid prenup.
  3. There needs to be full and frank disclosure of assets – to understand that what you are signing is fair you need to understand the true financial picture. If you don’t feel comfortable disclosing the true financial picture to your intended, then the prenup you propose might not be valid.
  4. Both solicitors acting for the parties should confirm that the agreement was entered freely and without duress.
  5. The agreement should be fair and realistic. A prenup is not a way of ringfencing all your assets and leaving your spouse with nothing if you divorce. If you take the step to get married the courts will expect that there will be some sharing of assets.  A prenup is about setting out what the parties agree is fair and that will vary from case to case.
  6. There should be consideration given to reviewing the agreement, particularly if children are born. What might be viewed as fair could change over time.

The prenup conversation might be a tricky one, but it is a lot easier agreeing what is fair while you are still enjoying the best of times, rather than when you are in the worst of times.

And the very best result after drafting a prenup? When they never have to be used.

Legal Advice

It is not only advisable to take legal advice when preparing a prenup, but it is necessary for both people to obtain independent legal advice on the fairness of the agreement if you want it to stand up in an English Court.

If you would like to speak confidentially to our team of family lawyers you can call 020 7993 2936 to schedule an appointment or make a Contact Request here

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No one can deny a postnup is a practical proposition, but being prepared doesn’t have to be at the exclusion of romance.  There is the story of the newlyweds signing their postnup at the wedding – straight after cutting the cake – to the cheers of their guests.  That might be a step too far for some, but couples agreeing a postnup might well be saving themselves a lot of unnecessary heartache and expense further down the line.  Neither of which are very romantic!

Many of the couples we advise in our practice about prenups have separated and then reconciled.  On reconciliation, they have decided that they want to agree what would happen to assets if they separate again and this time there is no way back.

They have seen the reality of how hard it is to make decisions when they are contemplating separation and how difficult it can be to think clearly when one or both is hurt and angry.  They are savvy enough to realise that things can go wrong, and it is better to reach an agreement while they are enjoying the best of times, than wait until they are going through the worst of times.

Some couples have simply seen friends and family go through a breakup and have watched a seemingly happy couple embark on a long process of disagreement and litigation.  They recognise that they never want to be in that place and take steps to ensure that they will avoid that fate.

Many couples find themselves in a very different position to the one they were in when they married. Postnups have only become a significant part of the legal landscape in recent years.  They may not have been an option when some couples married, but now that that they are an option, those couples are having that conversation.

Talking of that conversation, some couples find it difficult to broach the subject of a prenup before the wedding, there is a lot to plan, it is an easy conversation to avoid and it didn’t come up.  Once time has passed they may be able to bring the subject of long term financial planning up and a postnup might be part of the answer.

There is a growing trend for parents to ask their children consider a postnup.  If a parent of adult children wants to ensure their wealth is left to their children and grandchildren, and not their daughter or son in-law, then they might consider asking their children to agree a postnup as a condition of naming them as a beneficiary in their will.

Another reason couples consider a postnup is that either one or both of them have been married before and they have either been through a difficult divorce, or they want to make sure their existing children benefit from their estate.  It is a practical solution to a problem that otherwise might cause worry and stress.

The overwhelming theme is one whereby couples have agreed that taking practical steps before separation provides both with security.   The courts are increasingly recognising prenups and postnups as long as certain conditions are met and that seems to me to be the reason for the increased uptake.  Good reasons for a postnup were always there, it is perhaps just that increasing certainly as to their validity is responsible for the rise.

Is it the end of romance?  I don’t think romance will ever be out of date- taking control of your life and your future can be liberating and allows you to enjoy the moment – the romance can follow from there.

Legal Advice

It is not only advisable to take legal advice when preparing a prenup or postnup, but it is necessary for both people to obtain independent legal advice on the fairness of the agreement if you want it to stand up in an English Court.

If you would like to speak confidentially to our team of family lawyers you can call 020 7993 2936 to schedule an appointment or make a Contact Request here

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