February 12, 2018
Article
Five things to think about before you say, I do!
Guest article written by Andrew Barton, Family Law Partner of Stephens Scown Solicitors
The announcement of an engagement is, of course, a time for much celebration. As soon as the revelry is over, decisions have to be made about venues, invitations, flowers and all of the other arrangements that must be pinned down before the wedding takes place. Amidst the cacophony of celebration and arrangements for the big day, it can be very easy to overlook some of the financial considerations arising from a marriage.
These issues might not immediately be apparent. In my experience, very little is known of them until they come up long after the wedding date – sometimes when it is too late. If they are overlooked they can have some serious unintended consequences for the couple and their wider family.
1. Consider your will
Many people have wills setting out how their assets should be dealt with on death. A wedding can have the effect of invalidating the wills of the marrying couple. From the date of the wedding, old wills drafted before the marriage was known of, are effectively replaced with a new presumption that the estate of the dying spouse will pass to their new spouse. This can impact children from previous relationships or other family members most heavily. Even if it follows a very short marriage, lots of unintended consequences can, and frequently do, arise from couples not reviewing their wills.
2. Pre and post-nuptial agreements
If either spouse is coming to the marriage with significant wealth, or there is an expectation that either of them will inherit or be gifted significant wealth in the future, a prenuptial agreement should be looked at. These are bespoke documents setting out what the couple agrees should happen to the wealth in question should they ever divorce. When drafting these agreements both partners need to be separately advised. Competent solicitors will very much try to work together to document the couple’s wishes in a way that doesn’t risk compromising their relationship. These agreements are not currently binding in the English Courts, but if they’re drafted correctly, they can carry substantial weight and provide a great deal of clarity and reassurance to the couple and wider family members.
3. Business ownership
Providing your spouse with a share in your business may have a positive effect from a tax perspective. If the marriage ends in divorce, however, which nearly 50% of marriages do, these arrangements can be quite difficult to unpick and have some quite unintended consequences. Whilst pre (or post) nuptial agreements can help with this, there can be some wider considerations. As a business owner, you also need to give thought to the fact that without an effective will, on your death, your business interest will pass to your spouse. Sometimes this might be entirely what is intended, however, if you are in business with members of your wider family, for example, that may not be the case. Again, prenups and wills should be looked at.
4. Ownership of property
If the couple has already been living together they may have entered into a cohabitation agreement. They might already own property together and have a declaration of trust recording ownership in unequal shares to reflect a larger contribution by one of them towards its purchase. These arrangements provide next to no protection in the event of divorce. If no will is made after the wedding, a declaration of trust would have no bearing on how the assets pass on death either. Many couples aren’t aware of this.
5. Broader financial arrangements
How assets are treated by a couple during a marriage can have a significant bearing on how the assets might be dealt with should the couple ever divorce. This treatment might seem quite subtle in the context of the relationship, but if assets brought to the marriage remain solely owned and separate from the other spouse, it can assist any arguments on divorce that the asset should not be shared. Nothing beats a prenuptial agreement for protecting these assets on marriage, but in the absence of a prenup, the best advice in terms of protection is to try and keep these assets at arm’s length.
A little time taken out from wedding planning to consider the above, whilst not romantic, will prove invaluable should ‘I do’ turn into ‘I don’t’ down the line.