It has struck me that when you are planning a wedding or civil partnership ceremony no-one informs you that your legal rights are going to change as a consequence of the marriage. The time in which you are arranging your wedding or Civil Partnership, is a happy time. Many people will congratulate you on the news, when you contact them to enquire as to the pricing and availability of their service, whether it be the venue, the registrar, the caterers or any of the other number of people involved in helping you plan the big day but no-one will say
“you should ensure you are aware of the impact your marriage will have on your rights over each other’s property”
It is seen as unromantic or cynical to point this out to the happy couple but arguably, it is the most important change that will occur after the ceremony takes place.
I have experienced a number of cases where the parties have entered into a Declaration of Trust to hold their property in unequal shares prior to marriage and who have been completely unaware that their subsequent marriage will have changed these rights. These couples are then surprised the document now carries little weight when divorcing.
It has also become apparent to me that there is a misconception about cohabitation. It is believed that if you have cohabited for a long-period of time that you have the same rights as those who have married or entered into a Civil Partnership. This is false, there is no such legal entity as “common law marriage”, it simply does not exist in the UK. Having said that, if you have cohabited for a long period of time before marrying it is likely that the Court will take that period of cohabitation into account when considering how the assets should be divided in any subsequent divorce.
By entering a marriage you automatically gain rights to make a claim on each other’s assets for both lump sum amounts, property rights and maintenance. The success of these claims will depend on a variety of factors and you can, of course, try to regulate these prior to marriage with a Pre-nuptial agreement or once married with a Post-Nuptial Agreement. However, these need to be considered carefully and with legal advice to ensure that it will have the best chance of being followed by the Court should you divorce in the years to come.
Unromantically, marriage is a legal contract which has consequences and it is, in my opinion, important that all happy couples considering marriage or a civil partnership are aware of the legal consequences prior to entering into the marriage.
Bethan Foster – rhw Solicitors llp
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Contact Bethan Foster: email: firstname.lastname@example.org call: 01483 302000