When you have been divorced, marrying again may not feel like the right option and so often we see people moving into cohabiting relationships. However, the rules surrounding cohabitation are very different to those for married couples. In today’s episode, Tamsin speaks to family lawyer Jason Stanley about how finances might be divided post cohabitation and how you can agree how things will be divided before and during cohabitation or marriage to save cost later.
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Jason is described in the UK Legal 500 as “practical and approachable”. Jason covers most aspects of family law but in the main, advises clients in relation to resolving financial issues following a marriage breakdown, divorce and separation.
He also has considerable experience in advising clients in relation to an array of disputed child arrangements that include relocation of children internally within the UK and abroad, specific issue matters of disputed of schools, parentage, and parental responsibly and emergency prohibitive work.
He also undertakes personal protection injunction applications in cases of domestic or emotional abuse. Jason also has experience advising clients who are unmarried, drafting cohabitation and separation agreements, and will regularly advise clients about wealth protection, pre and post nuptial agreements that is an emerging area of law that he has a particular interest in.
He has attained Resolution specialist accreditation in Complex Financial Remedies and in Cohabitation and Trust of Lands and Appointment of Trustees Act.
Tamsin is a Chartered Financial Planner with over 20 years experience. She works with couples and individuals who are at the end of a relationship and want agree how to divide their assets FAIRLY without a fight.
You can contact Tamsin at firstname.lastname@example.org or arrange a free initial meeting using https://bit.ly/SmDiv15min. She is also part of the team running Facebook group Separation, Divorce and Dissolution UK
Tamsin Caine MSc., FPFS
Chartered Financial Planner
Smart Divorce Ltd
P.S. I am the co-author of “My Divorce Handbook – It’s What You Do Next That Counts”, written by divorce specialists and lawyers writing about their area of expertise to help walk you through the divorce process. You can buy it by scanning the QR code…
(The transcript has been created by an AI, apologies for any mistakes)
Tamsin Caine 0:06
JHello, and welcome to the Smart Divorce Podcast. Today we’re going to be talking about what happens when you have a new relationship with somebody and you want to make sure that you protect your finances. So if you decide to move in with a new partner or even get married for a second or even third time, how can you protect yourself legally, you’ll know how hard it is going through divorce. And you probably won’t want to be in a position where you spend money that you’ve spent on your divorce proceedings, and you want to do what you can to legally protect yourself. I’m going to talk to lawyer Jason Stanley from McAlister Family Law today. He’s going to be telling us all about how habitation agreements, Prenuptial agreements and postnuptial agreements. Let’s jump straight in. Hello and I’m very derlighted today to be joined by Jason Sunlake. Jason is from McAlister Family Law, I let him introduce himself properly. Thank you for joining me today, Jason, how you doing?
Jason Stanley 1:17
I’m great. And thank you for inviting me. Delighted to be invited to be a part of this. I’m really excited.
Tamsin Caine 1:22
Excellent. Me too. I’m looking forward to our conversation. I think it’s going to be incredibly useful to a lot of people. Do you want to just give us a bit of background about sort of what your specialities are and what you’ve been up to in your career so far,
Jason Stanley 1:38
Of course, I’m sad to say a 20 year plus PQ e solicitor. So the grey hand hairline says it all. I undertake an array of family work for those who are married, contemplating divorce or separating their children issues, but latterly, in the last 510 years, I’ve focused on the unmarried couple aspect, which I find fascinating, I think is a developing trend that’s going to feature more and more. As time passes on. think marriage is on the decline, people are choosing to live together, they may have had a marriage first time around and choose to form a relationship that’s not married, and they need to be wary about that. But then also, Prenuptial agreements are becoming popular. I’m finding more and more instructions on that pieces. So I do a mixed bag. I’m sort of a hybrid finance children. On married couple work. I’m a partner at Macalester family law, who’s part of the armed group. And yeah, we’re a national and international law firm, and can cater for all sorts of clients in those scenarios.
Tamsin Caine 2:46
Fantastic. And you’re you’re a Manchester based person,
Jason Stanley 2:51
I am indeed the big lights of Manchester
Tamsin Caine 2:55
Big lights to the city. I should wrap up that this podcast came about because we had coffee a couple of weeks ago and started having a conversation about cohabiting and not you and me cohabiting. And it struck me that it’s a topic that we haven’t covered a huge amount of, and it felt like it would it would be something that we should talk about. So a lot of a lot of people coming out of divorce have very negative feelings about marriage and about entering into another, another American relationship. But lots go relatively quickly into cohabitation, believing that if they’d have cohabited in the first place that would put them in a much better position than they were when they were married. And, and I think it’s important to start off by by explaining that that’s not necessarily the case. And the rules in England and Wales are quite different, cohabiting and married couples,
Jason Stanley 4:00
You are absolutely correct. And I feel for those people that particularly have been in a long marriage or may have had children and had a terrible experience, and maybe fearful about re marrying again, the negative experience or the cost or whatever, may influence that and may choose to go down a route that they perceive as is simply just simply live with somebody. And that is fraught with some danger, because as you correctly say, the laws that apply to a married couple are completely different to those that apply to an unmarried couple. And in fact, in some instances, if you’re unmarried, there isn’t an unmarried act of parliament, although there is something in the pipeline that may not come to into good law for years. It’s it’s maybe a wildlife we’re stuck with sort of quite dry property law or trust law that can be a minefield and So I think it’s critical for those couples to get advice quite early from somebody like yourself financial planner, or somebody like me get some initial legal advice, because you just need to enter into that second relationship with your eyes wide open, I think, particularly if you’re worried about how the first relationship didn’t work out, panned out.
Tamsin Caine 5:19
Yeah, absolutely. And I think there’s a there’s a misconception that that we should also probably stamp on earlier, early on in this in this recording, which is the common law marriage.
Jason Stanley 5:35
It’s a myth. It really is you can construct your life like a married couple, and that’s fine. And maybe it’s a tagline. But there is no law. There’s no common law man and wife that exists in England and Wales. And it’s a misnomer. So people need to be mindful of. I mean, what’s interesting is if you are in a cohabiting relationship, and a long fulfilling one with children and conduct yourself exactly like a man and wife would, the court can draw inferences from that and see how you’ve constructed your relationship. And I pause then emphasise the word constructed, because it’s one of the features of a married laws that a court will consider constructive trusts as part of the remit when unpicking a separation in an unmarried scenario. It’s quite an important feature. So to do away with, I think, a lot of implied or suggestions. It’s very unromantic. And we discussed this when we had coffee, maybe they should go and get a lawyer and sort of be honest with their other half and say, Well, this is what I’m bringing to the party. And this is what I first see, our financial relationship should look like as unromantic as that isn’t, and see what the reaction is.
Tamsin Caine 6:53
Can I just ask you about about something big? Just before we, before we move on? You mentioned constructed trust? Yeah. Please tell me more. I know that a phrase I’ve ever heard about.
Jason Stanley 7:08
Okay, that’s great. Okay, so if I might be give you a good example of how that might transpire. So, say, client, Jill, has bought a house, in her sole name, she put the deposit down, and she thinks, and two years later, she meets John, and they start living together, John lives in her house, he contributes half towards the mortgage, maybe they have children together, he puts her loft extension in landscape to the garden maybe uses 20 grand of inheritance to pay off some of the mortgage and then the rest of it. And then after 15 years of relationship that comes to an end. Now, at the land registry, Jill is the sole legal owner of that property. So the starting point is she will say, It’s my house. Sorry, John, tough luck. That’s how the title is registered by thanks for the idea. So he in the first instance, has some difficulty because the evidence points to a legal document, land registry that says she’s the sole legal and beneficial owner. On the title, he is Lila Anna, she also owns the property, the beneficial interest. And so what John might do in that scenario, is to say, Okay, well, there’s a reason why I’m not on the deed. And the first one is because it was your house, when you bought it in your own right. And I have to happen to subsequently move in with you. So he would say she holds the legal title solely as hers, but on trust on a constructive trust for him. And he might say, I invite the court to have regard to how our relationship was constructed, I have lived almost like your husband, I’ve made financial contribution that’s not minimal. Wealth has been blended, we’ve had children together, there may have done mirror wills. So for instance, if Jill passed away, she may have nominated John to be the guardian and beneficiary of her estate that would advance his case there may have been engaged to marry. And all these bits and pieces of information, the court gets a feel for how do they construct their relationship, you know, it may be very different, they may not blend their finances, it may be very much mine and yours and very spreadsheet like and again, that may have some resonance. So that’s a typical silly example, but a palatable one for your listeners to understand that. That is how that might pan out. But it’s tricky, because it’s the quality of the evidence, you know, so there’s no documentary evidence to support that. It’s all on John’s say so he might have a good case, but the burden of proof is on him to try and convince the court that the land registry is wrong. And actually it’s a 5050 or 6040, or whatever he wants to argue. It’s going to involve a lot to legal cost if if Jill’s going to stand firm on that. So a better option would have been when John moved into them to think about putting them on the deed or enter into a deed of trust or draw up some kind of cohabitation agreement, for instance, saying, This is what we both agree our financial landscape is like, particularly if you maybe have children. Yeah, something monumental on the rise. So I hope that gives you a brief overview. It wasn’t too boring to drive your listeners. But that’s that’s the kind of example.
Tamsin Caine 10:30
I think that’s really helpful. It strikes me, you know, you mentioned about kind of putting arguments to the court. And then No, in a marriage situation in a divorce or dissolution of this civil partnership, we obviously trying to avoid going down the court route and trying to settle things in a non court way, if at all possible. It sounds to me that in these situations where it’s cohabitation, rather than a marriage or civil partnership, that what is is the option, the only option to get this result. Is that right?
Jason Stanley 11:10
No, not necessarily. Although I’m glad you brought this up. Because, again, when we talked early on about the differences between married and unmarried law, if you’re unmarried, and you can’t reach a resolution, and you do have to issue proceedings and have recourse to the court, the civil procedure rules do apply. And what that means is that there will be de facto a winning party and a losing party. So in our scenario of Julian, John, if, if you’ll won’t do anything, and John takes it to court, and he wins, and he had an order for sale, to get some of the equity out of the house, he’s won his case. So say his legal costs just for an example of 25,000 pounds. And here’s a similar if Jill’s lost that case, she not only incurs her own costs, but the court is likely to make an order that she picks up the majority of John’s costs. So she may be on the hook for 50 K’s worth of costs. And so there’s double jeopardy. And so, you may say that sounds quite archaic or difficult, but it’s actually a mechanism to weed out the weak cases, by the loss of my cohabitation disputes, don’t go to litigation, because it’s pretty straightforward. At the outset. i There’s no evidence or it’s straightforward, quite rare for them to go to court. And one of the big considerations is legal costs, do you really want to lose, which would be horrific, and then have the indignity and the psychology and the financial ruination of having to pay your opponent’s costs, it’s grim. So you go to court as a last resort, and you mentioned other options. You should try and mediate outside of court, if you can, if the issues are narrow. You could try a solicitors negotiation, you could try and negotiate yourself. But I found that when I have issued claims in the civil court quite early on at the first hearing the judge, and it seems to be a trend in the north, the judges tend to stand them down and to order the parties to at least attempt a mediation or something called an ADR alternative dispute resolution. Because there’s sort of two schools of thought as to why that might be useful. One is that the court system is just so clogged and trying to get hearings is becoming harder and harder. And there are a lot of litigated cases and stretches on the resources of the court system. So trying to resolve it outside of court might result in a resolution quicker. So that’s a real positive. But secondly, also, you know, some of your other guests that have been on have sort of argued for the fact that ADR or mediation, you get the sole focus of the person running the arbitration or mediation, concentrating on your case and giving you full attention rather than a court that may have three or four cases in the list and get presented with documents, right, the 11th hour may not read everything, and it’s a bit of a rush job. So there are pluses and minuses. The problem with the mediation, the ADR is it’s privately paying to the parties would be expected to try and contribute half to the experts. fee may range between 1000 to 2000 2500 pounds each, to try and get a day with a mediator to try and settle the case. And I think if your issues are quite narrow, it’s good money well spent. It’s cheaper than court. So that’s another option available to parties. And as I say, lawyers come with a bad reputation and litigation is the last resort. It really is because it’s it’s stressful and it’s so expensive.
Tamsin Caine 14:49
Yeah, and long.
Jason Stanley 14:51
That’s exactly Absolutely I mean, crikey. We find that, you know, we used to sort of say a case be done in six to 12 months. We’re 12-18 Now Have easily to be done staff as well.
Tamsin Caine 15:03
Cohabitation agreements. So you, you mentioned this before. And and you, you said about you can kind of document the landscape. I’m thinking of John and Jill. Every in my heart. If, in your example, you know, it was Joe’s house in the first place, and okay, albeit John started paying half the mortgage, but then he contributed a loft extension in your example. I was listening. Very good, very good. So the house will have changed, kind of post cohabitation. Does that is the cohabitation agreement? I guess we should start with, with what it is what it sets out in the first place. But also, is it something that should be reviewed regularly? Like a wealth? For example?
Jason Stanley 15:56
Brilliant question. And you’re absolutely right. So you’d start off with the document, being a starter for 10. This is how things exist. And typically, you might say this, if something massive on the financial landscape happens, like he contributes X amount of paying off the mortgage or pays for the lawsuit, that might be the Genesis to formulating a capitation agreement. So you may say, Well, look, from the day John, the day, John moves in, what was mine, so this is Jill, what was mine beforehand. So my I don’t know, 50 grand deposit on the house is mine, if we ever sell it, or God forbid, separate, but anything thereafter, when he moves in, because he’s paying the mortgage and the price of the house goes up and the mortgage is reduced, it is shared equally, that might be a very democratic way of approaching this. So both parties when Joe gets her initial deposit ring pen, shall we say, and he gets his contribution to the house fairly reflected. And it may be a little bit more prescriptive. So maybe there’s they have different salaries. So John contributes 1000 pounds to bills and a mortgage, but Jill pays a bit more. There may be fine by that. And then you mentioned the review clause. And it’s, it’s a cracking question. Because it’s very similar to Prenuptial agreements, it’s sensible to have a review, for a couple of reasons. One, if there’s a major change, so maybe a baby being born on inheritance, or I don’t know, an accident when one party can’t work for a period of time claiming benefits. So that might trigger a review. Or you might just have sort of a an annual review once every three or five years just to sort of updated. And you don’t have to spend a lot of legal costs just a variation to say, you know, if this relationship now has long legs, it may be a softening of position. So if Jill and John have been together for 15 years, she may not be that bothered about a 50 grand deposit, she may say, look, we’ve invested in each other a long time, and we’ve got three kids, what’s yours is mine. And that’s just a straight 5050. That could be their choice. So it’s a contract. It’s a contractual document. Just like if I sold you my pen for 10 P, we enter into a contract, it’s the same, it’s the same concept. And you can vary that by way of consent.
Tamsin Caine 18:10
Okay, that’s interesting. I’ve been I’ve been working with, with a client, I’ll be careful how you describe it, and leave it at least, that they really recognise it. But now you’ve got an arrangement they’ve moved in with, with their new partner, they’re currently going through divorce. And in their actual marriage, they’re living with a new partner, and the house belongs to the new partner, and they’re not contributing to the mortgage. But they are buying all the food for the house and contributing to bills. And this is a position that kind of concerns me as they’re there, find that job partner, because I feel like there’s there’s a while you’re not actually paying towards the mortgage. So if this relationship goes wrong in the future, there’s going to be no, no, kind of you contributed to that. But actually, they are making a contribution to the household as a as a whole. What what position? What position would that put them in?
Jason Stanley 19:23
It’s tricky, because it’s discretionary. But I think what you really get out is let’s just say the, the less wealthy of the two is making those contributions. I mean, it’s not material, is it enhancing and enriching the asset? No. It seems to be a way of meeting cost of living, you know, so I sort of take the take the weaker party out of the equation. They would have to pay rent or mortgage if they were living on their own, and they’re paying far less than that. So are they actually enhanced? It’s all to do with the property again, because you’re unmarried. It’s very proprietary. It’s all about opposite, it’s very narrow, you know, in the Matrimonial Causes Act, as you know, the courts got to look at fairness, reasonableness on needs. And it just doesn’t apply in this scenario. So yeah, if you were a generous persons here, the wealth you want in that scenario, and you really want to recognise somebody’s contribution as being valid, or you can’t survive, without that, you may throw them a bone and say, okay, even a bit of an interest, but it’s subsistence contribution, I think, it’s got to really be meaty, like, that’s why I picked on a loft extension, paying off a mortgage, or enhancing or enriching that asset. It’s got to be tangible. I mean, again, I mentioned constructive trusts as the popular way in which people who are unmarried may run a contested case, there’s something else called a resulting Trust, which is less popular these days. And it’s sort of a tabulation of John has contributed in the list the things that he’s done, and then says, I want them back. Because I’ve paid X, Y, and Zed and nominal contributions to like food or I don’t know, an occasional holiday aren’t going to cut any ice, it’s got to be here is materials building works, landscape fees, that he has contributed in the sort of Tottenham courts aren’t that interested in that anymore, they’re trying to be a bit more modern and look at as a family holds an entity? So yeah, it’s a tricky one, I do get what you’re saying. But it depends on the couple, you know, it’s up to them. This is a delicate, isn’t it? Because you’re talking about how you construct your finances in a loving, committed new happy relationship. And it may be unpalatable, you know, depends on what the people are like, I guess
Tamsin Caine 21:41
That’s hard, isn’t it? Because you people in acquisitions, the, the relationships go wrong every day. And you don’t want to be as you said before, a romantic. Yeah, but you really need to go and see a Family Lawyer and get, go have a Dacian agreement, but in place to protect you later.
Jason Stanley 22:02
I’ve got a great tip, which is when when the wealthier party wants to protect something, instead of saying, when we separate, we’ll get x that’s pretty negative, what you might just say is, if we ever sell a house, that’s got a nice ring to it, there’s no sort of doom and gloom about it, because that’s usually what it is going to hammer home. And people might be quite blunt about it. But it just started compensation. Because if you’re the wealthier person, you’ve got everything to lose, if you’re the not so wealthy person, you kind of also need to know where you stand. And it’s about just having that honesty. You know, it surprised me that people aren’t more open about this, I think, because it’s like any decision that’s huge on the financial, you know, you do your research, and you’d be honest, with the person you’re, you know, getting involved with, what are the rules? What are we doing? who’s contributing what, who gets bought? How are we going to do? You know, if things don’t work out, I don’t understand what’s such a big deal about that, to be honest.
Tamsin Caine 23:01
It’s money, we don’t talk about money. Talking someone about this just yesterday, they will happily sit in the pub and talk about our sex lives. But we’re not going to talk about what we earn or what we’ve got in the bank. It’s very strange, very strange country. Let’s move on to another example. Because I know, particularly when we’re talking about cohabitation, and buying of property has has a real impact and how we decide to buy property together. So guesses, there’s two things there’s how the property is is registered, whether it’s jointly or tenants in common. And also, what about if one party is putting in considerably higher deposit than the other party?
Jason Stanley 23:50
Again, great example. So just for your listeners, who may or may not know, if you are joint tenants, to people earn an asset. So if one of the parties passes away, the entire property goes to the survivor has her husband wives tend to own at all, same sex couple, maybe that can apply in unmarried, it can even apply to people or just friends or sister and brother who doesn’t have to be in a marriage or unmarried context. So that’s one example. Another one is tenancy in common that you mentioned. And that is a specific share. So again, Jill and John in our scenario, Jill puts down 50 grand and John puts down 25 grand, so a lesser sum. What they may say is we don’t or hold the property, although we’re both on the title deeds as joint owners. She has a higher proportion of the property than he does. So they own it in unequal shares. So you can stipulate when you buy the property on the transfer deed how you hold it or another For example might be, it’s held up land registry jointly, but they enter into something called a deed of trust. So for example, well actually that’s not quite right if St. John’s got bad credit rating, that’s a better example that they both wants to own the property in joint names. But he’s got poor credit rating, he can’t get a mortgage, but he can pay towards the mortgage and the like it he’s got a good job. It’s just came out and I VA refinance, just say to Jill is the sole legal owner, but she holds it on trust for John has 250 50 they may end up drafting a deed of trust, say, she’s the legal owner, but if they ever sold half his and afters, so those are some options, it’s sensible to speak to a conveyance and actually conveyances will often ask people to fill out questionnaires, how do you want to hold the property tenants in common joint tenants so deed of trust, this is how you’re going to register it and and registry. And if there’s ever a dispute that I’m involved with, for cavities, the first thing you do is get the conveyancing part. Because when you’ve got to establish right at the outset is when they bought the house, what did they intend? What was the instruction? It’s critical? Because it’s the bedrock of the case. Of course, things can change over time. The starting point is, how did they intend to buy it? It’s crucial that they get good advice, particularly if there’s an unequal contribution. It’s really, really important, because it’s, as you said, it has ramifications if things don’t go right. And just because you happen in love, and you’ve got this new relationship, it can cloud judgement. Nobody’s thinking about oh, gosh, what happens if get your house in order sensible? I think it’s fair as well, because then it just sets the tone.
Tamsin Caine 26:50
No, absolutely. And I think it might be useful just to touch on pensions, because because this is very, very different for cohabiting couples, compared with those in their marriage or civil partnership.
Jason Stanley 27:05
Yeah, absolutely. Everything goes into the pot in the marriage. The Matrimonial Causes act is wide ranging. All resources in a marriage are considered whatever their provenance. So even if an inheritance comes in, the court potentially has quite wide jurisdiction to consider an inheritance like a non matrimonial asset and pull it into the party if needs can’t be met. In a marriage context, you know, the court has really wide powers, but in unmarried ones, boy, you’re struggling, you know, each party is going to keep their own pension. Each party is going to keep their own things, each party is going to keep their own savings or investments. It’s very much how you legally own that particular asset or bank account or ICER, or Ferrari, the fairness elements simply being dramatic, the fairness element just doesn’t come into it. It’s and that’s why it’s important to perhaps list what is yours and what is mine. We do this a lot in Prenuptial agreements post nuptial agreement to actually have a shedule at the back saying this is what constitutes my property and you will list my bank account my pension my sip my car, my Rolex, whatever it is. So you ringfence what identify at a point in time, what is hers or his and vice versa? And then anything you created together? You may say let’s share quite democratic.
Tamsin Caine 28:34
Okay. So as as we’ve brought those into the conversation, it would be useful to to mention prenuptial and postnuptial agreements, because these can be particularly useful if you do decide to enter in into a second marriage, for example, rather than cohabiting because I guess people tend to have more assets or second time around them than perhaps they did when they were starting out if they were buried in their early 20s. For example, that that might not have been a consideration, but you know, 20 years down the line, they may well have assets that that you want to make sure are set out in the first place. So can you tell us a bit about what kind of pairs what posting appears how they work? What what sort of things they say?
Jason Stanley 29:21
of course, but before I answer that question, I’m going to do the questions question for a second. Are you finding instructions on a prenup or postnup? Basically finding just Just out of interest, a trend, these are becoming more popular, you’re being asked to advise on them?
Tamsin Caine 29:36
And not a huge amount, not as much as I would like. We quite often advise clients to seek legal advice if they their assets that they have in place already. And they’re planning on a second marriage and that I’m sending more people for cohabitation agreement. Okay. Isn’t this because of everything that we’ve discussed? More and more people who have come out of a marriage think that they did the wrong thing by getting married. And actually, when perhaps when they come in and see families listed to talk about a cohabitation agreement, they might realise that things aren’t so bad when you are at after?
Jason Stanley 30:21
Yeah, absolutely. Well, um, ya know, we’re finding that it’s becoming more popular, I have to say, which is refreshing. For the reasons we discussed that sort of second blended family particularly. But to answer your question, there’s two types of nuptial agreement. It’s a contract is a prenup. So for those who are contemplating marriage, and you can only enter one, if you know that you’re going to get married. If marriage isn’t on the horizon, then it’s a cohabitation agreement. There’s there’s no fixed date to get married. And there’s a few rules about this, you need to enter, agreed your document and have it signed off less than a month before the wedding, it’s really designed to be a cooling off thing. But you’d be amazed some people sort of ring two nights before the wedding thing and have a prenup, and you’re going really a car crash because there’s nothing worse than a rush job. It’s just it just won’t be binding in any say sensitive fashion. So you may say to that person, enjoy your wedding and your honeymoon, come to see somebody like me, and we do a postnup. So we’ll enter into exactly the same document, except it’s called a postnup. Because it’s signed and dated and executed after the wedding. And that’s the only difference between the two ones before and once after the risk of waiting and doing a postnup is once you’re married, the person might not want to do a postnup. You know, they may say, Well, you’re married now. So there’s a bit of a risk. And that’s why people sort of hedged their bets and say, Let’s have an honest conversation beforehand. And it’s usually for those couples where there’s a huge imbalance in wealth contribution. So I don’t know, Jill, in this scenario brings 2 million quid to the relationship. And John brings nothing. And she might think, boy is he married me just for my money. The minute we get married, the marriage rules apply fairness, and everything else we talked about would be applicable. So what she might do to try and Ward against that is to invite John to voluntarily agreed to enter into a contract a prenup. And that’s what it is contract. And we often get asked very, very often are they binding? And the answer that is not a an easy yes or no answer. The answer to that is it’s a contract, just like me selling you a pen. It’s a contract. But there’s certain rules and and
Tamsin Caine 32:59
so yeah, there’s certain boundaries and rules.
Speaker 2 33:02
Usually, both parties should get independent legal advice, because it’s a complicated, very, very important document and the weaker financial party usually needs to understand what it is that they potentially are giving up or what is the wealthier party preserving? Do they understand that? It’s going to mean that the document is upheld by a court later on down the line if both parties had legal advice? Is that the quality of the disclosure? Good? So does John know that Jill’s actually got 2 million quid it may be that she’s got 4 million quid and she’s not telling him the true extent of her her wealth. So the disclosure must be transparent. He needs to know what he’s giving up. All you need to see a declaration from our supporting evidence of here’s my property portfolio, here’s my savings or trust fund, or whatever it is. So the knows and goes into this arrangement, eyes wide open. And then there’s sort of got to be an element of fairness about it, I suppose. I recently took an instruction. And again, no names, but it’s super wealthy, you’re talking 40 million in this relationship. And when we got the draft, I think less than 1% had been offered to the weaker financial party in the event of a breakdown 20 years down the line and that’s just blatantly unfair. Someone’s given 20 years of their life to a marriage. No ways on Earth. Of course, he’s gonna say, one percenters game so that we can party even if they didn’t earn it, the courts going to adopt an element of fairness. So you’ve got to carefully think about a pre or post up about fairness is an important word but you’ve got to almost crystal ball gaze and cross check about what would a judge do if he was presented with this prenuptial agreement? 20 years down the line, and it goes back to that review point you made a few minutes ago. prenups a postnup should be reviewed. Perhaps once every three or five years or a major change like a child, you know, you think about it, Jill and John, and she’s got 2 million quid. He brings nothing. And they have a child two years later, it changes the whole landscape of that agreement completely, because all of a sudden, there’s a new human being to factor in, you know, he needs a house. Judge John will need a house to share care of that child as Bill Jill, and he might not have enough. So it’s that kind of thing that has to be thought about and you don’t have to spend a fortune on this at all. If you get proper legal advice from somebody like you to think about what kind of financial considerations should I have? It’s not just about a house, an income and other things, pension savings investments, trying to future proof and then get some advice from a lawyer. It’s much cheaper than litigating having a huge bonfire to the end of the process.
Tamsin Caine 35:52
Absolutely. Totally agree with that. Couple of things that have struck me about what you said. You mentioned independent legal advice for nuptial agreements, and just the same apply to a cohabitation agreement.
Jason Stanley 36:07
Absolutely. So again, think about what the judge might do if you go to court and one party tries to uphold the Cohab agreement, say, but this is what John agreed to. One of the defences that she’s getting to have is John knew what he was signing up to, because Joe Bloggs solicitor corresponded with me, here’s some of the letters on an open basis. There’s a solicitor signature and perhaps advisors certificate annex to the document. And John knew exactly what he was doing because he had specialist legal advice. And so if I’m ever instructed to help protect the wealth, the wealthy party, I’m almost saying to them, Look, John needs legal advice. And if he hasn’t got any money you might offer to contribute to his solicitor. So he gets completely independent legal advice. Even if you don’t like the reply and then negotiating from it. At least then there’s that clear piece of evidence that this person knew what they were doing.
Tamsin Caine 37:06
Yeah, absolutely. We were we were talking off air before we we started about, about somebody that I’ve spoken to in the last week who approached me and said that they’d had they had a prenup in place, and that they had taken independent legal advice. Well, they haven’t taken it. They had received independent legal advice from a from a fantastic list in the, in that great city and, and had ignored the independent legal advice that was given to them, because they just decided they would just sign the nuptial agreement, because nothing was ever gonna go wrong with this relationship and independent legal advice is, is there for the protection of both parties, isn’t it? Absolutely. And isn’t there to make sure that you’ve got a whole load of extra costs at the stage of putting these in place. I wonder if you could just just talk for a second about about that. The importance of actually taking notice of the advice you’ve given
Jason Stanley 38:17
it definitely because certainly on a pre or a postnup. I mean, that solicitor is going to have to put his or her signature to an advisor certificate, which sort of might fill that person with dread, because in 10 or 15 years time, if that document is before a judge who has to review the quality of the document and decide if it should be upheld and varied or not, the first thing the judge is probably going to look at is the appendices, what were the schedules? And did they get independent legal advice. And the solicitor will set out in a palatable letter to either the wealthy party if that’s the actor, or the non multi party, the ramifications for each of the provisions in the documents. So this is what this means you are giving up X amount of your wealth for John, over this period of time, are you content with that? Do you understand that you’re gonna have to be honest, you’re gonna have to honour that. Or from John’s point of view, you do realise that you should really be going for more, because it’s blatantly unfair. Or there may be a clause that says, If I mean, I’ve seen these before, if things don’t work out, after five years, I will buy you a one at one down, if it didn’t work out, after 10 years, you might get a summary. If it didn’t work out after 20 years, I might tell you, it’s very prescriptive, and you’re just thinking, wow, you know, who can predict the financial landscape, the credit crunch and all sorts of stuff. So getting that independent legal advice might be the difference between an awful lot of money being saved if you’re the wealthier party or gained if you’re the not wealthy party. So it’s crucial and also these these contracts, frankly, are really dry and dull and littered with acts of power. element definitions and it’s not easy to navigate they are typically 20 pages plus long for a straightforward one. And so I think it is money well spent just to invest, because it’s your future, you know, hopefully till the day you die. And just on that point, it’s not just confined to the prenup. By the way. You mentioned it before. If I did get a prenup, I’d want to know, how do they hold the property, because the prenup document has to mirror how they’re going to hold their family home or property portfolio. It also then leads me to think about what they’re doing in the case of a will, which is another separate legal document just about the prenup does the the will mirror what the intention is behind how they’re going to hold property or construct their finances. Because you really want your property your prenup and your will to be singing from the same song sheet. Because if they’re not, they’re going to be there’s going to be tension because the will might say x and COVID pletely contradict but the prenup says. So it’s broader than just singular hit zoning on the document, you’ve got to really look at the wider landscape. And people might not have even thought about the property or the wheels. So that’s in itself another reason to get some independent advice.
Tamsin Caine 41:16
Yeah, absolutely. This is such an important subject. And I think it’s, it’s something that more and more people should be considering them. It’s still not as wide as, as I would, I would hope for you know, it’s like having some we talk to our clients about financial protection, you know, life insurance, critical illness cover income protection, though, you have these insurances, and you hope that you’ll never need them. And to me, a nuptial agreement is just the same sort of thing.
Jason Stanley 41:48
100% agree with you. And it’s grisly and grim to think about life insurance. prenups are wills that, frankly, once they’re done, then you can just park them and stick them in the safe or on your hard drive or whatever. And then you can forget about it. And the hard works done. So you may as well do them all at the same time as well. sort of get your head from lawyers, all in one go and financial advisors and then pocket and then you can get on with your life.
Tamsin Caine 42:12
Absolutely, absolutely. These are the things that you hope you never need. But if you if you do need, you can be very, very glad that you that you got them in place at the time. Jason, we’re coming to the end of our time together, believe it or not, it’s it’s really flown. And I guess Lastly, is there anything that I should have asked you that that I haven’t that you feel that would be worthwhile to add?
Jason Stanley 42:37
I think it was sort of just to elaborate on that last point. Getting a will, if you’re unmarried is important to because particularly if you’re in a blended family that sort of coming out of a marriage or relationship, having children with your ex husband or wife and starting a new relationship. If you don’t do a will, you’re creating havoc, because there’s going to be an expectation for your adult children to maybe make some financial provision for you. What about your new partner, you may say that I don’t mind my new partner living in our house till he or she passes away, and then it reverts to my children. You may have stepchildren who are adults competing for that as well. So I think it’s as important to speak to a matrimonial solicitor or somebody who practices area of law as much as it is to deal with the wills and probate solicitor just to make sure that you’re not leaving a legacy of financial pain and uncertainty for those that you leave behind. And it’s daddy’s too few 100 quid you can update anytime you want the amount of dispute I’m seeing because I do contested probate as well starting to develop that practice. It’s it’s mind blowing how will that haven’t been updated for 20 years or not even exist? He just leaving as I say carnage for those you leave behind? But that was it on a happy note.
Tamsin Caine 44:02
No, I totally agree with that. I remember a situation which happened to a friend of mine and their mother had died and they had gained a stepmother and their dad had sadly passed away afterwards and and he was in this list of office the day following his father’s death wanting to contest the will because it was all everything from both his parents who was going was going to end up with with stepmom and as you say it’s it creates Carnage and havoc and and at a time when you should be grieving not sitting in the solicitor’s office.
Jason Stanley 44:44
You’re absolutely right and my two litigated cases have only got two in litigation at the moment are both surviving spouses. Whether the deceased has not made provision in the will for their surviving spouse. It’s unreal. It’s just unreal. So yep, family Get some advice early. Tricky.
Tamsin Caine 45:01
Jason Stanley 45:04
Well, thank you that was really my first podcast as well. So thank you.
Tamsin Caine 45:11
Oh, well congratulations. Thank you for joining us. Thank you for listening and we will see you in the next episode.
I hope you enjoy the episode of the Smart Divorce podcast. If you would like to get in touch please have a look in the show notes for our details or go onto the website www.smartdivorce.co.uk. Also, if you are listening on Apple podcasts or on Spotify and you wouldn’t mind leaving us a lovely five star review. That would be fantastic. I know that lots of our listeners are finding this is incredibly helpful in their journey through separation divorce and dissolving a civil partnership. Also, if you would like some foot further support, we do have Facebook group now. It’s called separation divorce and dissolution UK. Please do go on to Facebook search up the group and we’d be delighted to have you join us. The one thing I would say is do please answer their membership questions. Okay, have a great day and take care
Transcribed by https://otter.ai