Q. I am about to buy a property with my partner how do I protect myself in case things don’t work?
A. Firstly consider how you will own the property (as joint tenants or tenants in common) and in what shares if tenants in common. Understand that if you are married, or plan to marry all of your matrimonial assets, including your house become joint assets and are therefore ‘up for grabs’ in any divorce settlement in the future. A prenuptial or post nuptial agreement would help you in these circumstances.
If you are planning to buy a property with your unmarried partner things are a little more complex. It could therefore be a good idea to enter into a Cohabitation Agreement which sets out your intentions in case of a dispute in the future.
Q. Do I need a prenuptial agreement?
A. If the answer is “Yes“ to any of the following scenarios a prenuptial agreement could be right for you:
I am getting married and want to protect my property in case it doesn’t work out.
I am about to marry for the second time and want to limit any potential claims on the settlement I received from my first marriage.
I am a widower thinking of marrying again and want to protect my savings.
I am about to marry but worry that if things go wrong we could end up in a costly and lengthy argument.
I am about to marry for the second time but want to protect my assets to ensure I have something to leave in my will to the children from my first marriage if my new relationship breaks down.
Why you need a prenuptial agreement
Q. Will a prenuptial agreement stand up in court?
A. At present a prenuptial agreement does not carry the same weight as a Court order and will not ‘automatically’ be upheld or enforced by an English or Welsh court in the event of a divorce and/or disagreement.
The courts do however take them seriously, as a prenuptial agreement is evidence of your intentions to one another in the event of your relationship breakdown and one of the factors that a court may take into account when looking at all the circumstances of your case.
Q. Do couples living together have the same rights as married couples when they separate?
A. Contrary to popular belief, there is no such thing as a “common law” spouse, and the laws protecting co-habiting couples are not as comprehensive as matrimonial laws. That means there are few automatic rights for couples who choose to live together and not marry. In terms of dividing finances you would need to consider who owns any property or assets. When it comes to the care of your children a mother automatically has parental responsibility for her children, meaning she has rights and responsibilities in relation to where they live, go to school etc. Unmarried fathers will only automatically have any rights in particular circumstances and if you cannot agree on the arrangements a judge may be required to make a decision. Call 0800 321 3832 to discuss your particular circumstances.
Q. I am buying a new property jointly with my new partner. If he pays the deposit does that matter?
A. This depends on how you agree to own the property when you complete your purchase.
If you own it as “joint tenants” it is assumed that you will own it equally regardless of who has paid the deposit or the mortgage. It will also automatically pass to the other person if you die whatever you may put in a will.
If you own the property as “tenants in common” then this means you can say whether it is owned in equal shares or in unequal shares (perhaps to reflect the deposit paid by your boyfriend). It is important to get some specialist advice about the options now as otherwise it could cost you a lot of money to try and sort it out if things go wrong in the future.
Q. I am moving in with my boyfriend will I have a claim on his house if we split up?
A. If the house is owned in your boyfriend’s name then the starting position is that you will not own any of it, however long you have lived together. There is no such thing as a common law spouse. If you have paid contributions towards the property or for improvements you may be able to make a claim but this is a complex area of law and you will need specialist advice. It may also make a difference if you have children together. If your boyfriend agrees you should be entitled to a share if things go wrong you could cover this in a living together agreement.
Q. What if my partner won’t leave our shared property?
A. If you have not entered into a living together agreement then much will depend on how the property is owned, or rented. If it is in joint names, the chances are that you won’t be able to force them to go easily in the short term. If things have deteriorated badly, and there is any aggression from your estranged partner, this makes the situation very different. You should contact an experienced family lawyer immediately to discuss possible emergency remedies.
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