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How to future proof for an amicable divorce

Senior Associate Sarah Gillen, based in Surrey, explores how couples who are aligned on the purpose of their marriage (or cohabiting relationship), and are open and honest about their views on this from the outset, actually lay a more solid foundation for their relationship and can also, if it came to it, have more amicable breakup. Sarah also dives into practical steps to consider to future proof joint and individual success.

The Mindset Muddle

People get married for many different reasons, and there are also many different interpretations of what a good marriage is. The interesting thing is, a lot of people discuss their ideas on marriage, but not usually in a substantial way with their partner, whose opinion on the subject is the most important one to know!

For some marriage is the coming together of two people to pour everything they each have into achieving joint life goals. This often means each will focus on different elements of these joint goals to fully utilise their individual skills to achieve a better outcome overall compared to each pursuing their goals individually. For this to work, however, it requires both parties to have the same life goals and to be happy to achieve those as a team effort with their partner. For others, marriage is about sharing life’s journey with someone. It is where you can be each other’s biggest cheerleader in achieving your own life goals individually but you do not necessarily have the same life goals, or achieve success through a joint effort. Of course, there are also many other interpretations of marriage and it is all too common for couples to not really align on the root purpose of their marriage.

If a marriage does sadly come to an end and the couple choose to divorce, when the time comes for the couple to settle their finances, the most difficult hurdle to overcome, from my perspective as a family lawyer, is when the mindset of the individual spouses differs with regards to their ideas of their roles in, and contributions to, the marriage. This is especially so when the couple is unaware of this misalignment.

I believe this is because the couple is already dealing with the massive blow of the family breakdown and on top of that  they believe the person they loved, perhaps still love, who they wanted to spend the rest of their life with, is betraying them, either by trying to cheat them of what they equally helped build up, often as a result of sacrifice in other areas of their life for the greater good of the family, or by trying to take the fruits of their labour which they worked so hard for and their spouse did not equally contribute towards, if at all.

This doesn’t mean that those separating couples who were aligned with regards to their respective roles and contributions to their marriage have no difficulty reaching financial settlement. However, it is (often) a lot easier. This is because they share the same starting point of what is fair for each to have.

Whatever the starting point, ultimately, if no agreement can be reached, the court can decide the outcome, so the court’s view is the bottom line when negotiating financial settlement.

And what is the court’s view? This would lean very much into the idea that marriage is the coming together of two people to pool their resources and skills for their joint and equal benefit. It is assumed both have put their heart and soul into achieving success for the family unit jointly and as such all successes during the marriage belong equally to both spouses. This does not mean everything is shared absolutely equally, but that is another topic!

Read our Divorce and Financial Settlement FAQs

The takeaway from this should be that if your idea of marriage is not the same as the courts and or/ is not the same as your partner’s or intended spouse, you might want to consider future proofing your life’s successes and making sure you and your partner have the future you both want.

Practical ways to future proof your success

Nuptial agreements

A couple can enter into a nuptial agreement, either in contemplation of marriage (pre-nuptial agreement) or after marriage (post-nuptial agreement) to regulate how their individual and/or matrimonial assets should be divided if they divorce. These are becoming more and more popular. No longer is the ‘pre-nup’ the preserve of the super wealthy. There are many reasons why a nuptial agreement can be sought, below are just a few examples:

  • The couple believe they should remain distinct individuals and not pool assets and resources
  • The couple have had previous marriage(s) and assets and/or children from which, that they wish to protect
  • Individual financial portfolios may have been built up by one or both parties before the relationship/marriage which they want to retain individually
  • The couple may have a non-financial life goal (such as having children) and they may agree that this would require financial sacrifice by one party and set out what they believe would be fair compensation for this and also fair provision for the potential child(ren)

Nuptial agreements are not automatically binding and there are various checks and balances that must be demonstrated before a court will consider a nuptial agreement as capable of being upheld. Even if all checks and balances are complied with, the principles of the court’s interpretation of fairness will still be applied, i.e. if one person is not sufficiently catered for, the agreement will be deviated from.

However, there is a range of what the court considers an appropriate and fair outcome with regards to division of matrimonial assets on divorce. Therefore, a nuptial agreement can set the division of the matrimonial assets at what the couple deems acceptable within this range. It is very important therefore, that specialist legal advice is sought with regards to any nuptial agreement to give it the best chance of achieving the intended outcomes.

Cohabitation Agreement

Many couples choose not to get married, for many reasons. There is much less societal pressure for couples to get married before cohabiting, starting a family or as proof of commitment.

Remaining unmarried, however, is also a way to keep your finances more separate from your partner. No matter how long someone cohabits with another person, whether or not they have children together, share bills and essentially live ‘like a married couple’ on separation each will take with them whatever they legally have in their own name. If they have any joint assets (such as the house they live in) then the division of this will depend on how the legal title shows ownership.

There are, however, grey areas. If there are children there is scope to seek support or retention of the other party’s assets for the benefit of the child(ren) until such time in the future when it is no longer required for their support, such as when the child(ren) reach adulthood.

Furthermore, it is possible to challenge the legal title of property in certain circumstances, it is a very complicated area of law and largely comes down to the provable intentions of the couple.

For the reasons mentioned above, it is often advisable for a cohabiting couple to have a cohabitation agreement drafted, clearly setting out the couples intentions with regards to their finances such as ownership of any jointly owned or used assets and provision for any current or future child(ren).

Non cohabiting couples

There is no obligation to cohabit with your significant other. There are many couples who live very happily apart. This is probably the easiest way to remain financially separate, but it is always sensible for such couples to get advice in this regard to make sure their assets remain separate, if this is important to them.

It’s time to talk

Seeking legal advice before you embark on marriage or moving in with your partner is not very romantic and it is an awkward topic to raise. However, by understanding the full financial implications of marriage, cohabitation and potentially divorce and separation, as well as your partners view on these, it can actually start you off on a more solid foundation. This is because you will have the comfort of knowing you are both aligned with what you want to from your relationship and what you want to achieve in the future.

One of our expert family lawyers can explore all your options and assist you with future proofing your success.

Useful Links

How to Handbook: A beginner’s guide to divorce

Starting your divorce with the right negotiation mindset

A guide to financial dispute resolution

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The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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