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Challenging a will and divorce: family law questions

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March 15, 2016

Senior Partner Marilyn Stowe appeared on local St Albans’ Radio Verulam this week. She spoke to presenter Phil Richards and answered listeners’ questions about various aspects of family law, including challenging a will.

She answered questions about cohabitation and whether contributing towards a mortgage equals any entitlement to the profits of the property if it is sold. Marilyn said that people in that situation should seek legal advice before considering going to court to begin what could be an expensive legal battle.

There were also questions covering getting divorced after just six months of marriage, protecting an individual’s financial assets following separation from someone with a gambling habit and the separation from a ‘gold-digger’.

The final question Mrs Stowe answered was from a woman whose late husband’s will was last changed over 25 years ago when he was married to another woman. This listener wanted to know whether she would be able to challenge the will as it stated that the ex-wife would receive the estate. Marilyn assured the listener that when someone gets divorced, any gift to a former spouse automatically fails. Moreover, when someone remarries, the will is automatically revoked unless the will states that the gift should remain after divorce.

Transcript from Marilyn Stowe’s interview on Radio Verulam

PR:                 Phil Richards

MJS:                 Marilyn Stowe

PR:                 Okay, so we have got some really interesting questions so let’s dive straight in. I lived with my boyfriend for 5 years and we have recently split up. We were living in a rented flat which my boyfriend then bought in his name. I paid half towards his mortgage as we were living together and now I have moved out he is going to sell the property for a huge profit. Am I legally entitled to any of the profits considering I have made a financial contribution although everything is in my boyfriend’s name?

MJS:                 Okay, well the person who has written in says that she was making a contribution towards the mortgage because they were living together. She says she was paying half of his mortgage. Well, what you have to first of all understand is the fact that you were living together gives you no automatic legal rights. Cohabitation is not recognised in UK law. So it is exactly the same as if two friends were living together or if unrelated people made contributions towards a property. The issue for the court is, is somebody entitled to a claim over the profits of a property simply because they paid towards half the mortgage. I think the starting point here is whoever owns the property, in law, is entitled to the profits. If you are saying that there was some sort of agreement, some sort of trust was created so that you would be entitled on sale and it depends on the fact, it depends on what was agreed at the time, it depends on a lot of things, how long it has been going for. What the course of action was conducted, you may be able to make a claim. But I warn you, these are civil proceedings, they are expensive and unless you are advised by a lawyer that you have got a really, really good case here, it could well be throwing good money after bad. I think the starting point is essentially, was that some form of rent.

PR:                 Right, interesting. I married my partner after a 6 month whirlwind romance. I realise I have done the wrong thing and now want a divorce. How long to I have to wait after marrying to get a divorce?

MJS:                 Well, marriage is not something that you rush in to, although saying that, I got engaged after 35 days, we were lucky really. Six months and the marriage has broken down, you actually have to wait 12 months, you cannot divorce. Year and years and years ago you used to be able to get divorced if there was exceptional hardship or exceptional cruelty within three years because then there was a three year bar. Now the law has changed, it changed a long time ago, it is 12 months; nobody can get divorced within 12 months.

PR:                 Now, another one. I want to divorce my husband of 10 years. He has developed a chronic gambling habit and run up a huge overdraft on our joint bank account. If I divorce him will I be liable for some of the debt although it’s not me who has created it?

MJS:                 Your listener says that there is an overdraft on the joint bank account, “will I be liable for some of the debt?” well, let’s look at this. First of all the court can take into account gambling as conduct that it shouldn’t ignore in dividing up the assets. So whilst the argument would be, “well let’s start at 50:50” and I have to stress that in most cases it may not end up 50:50 because there is no set formula but let’s start for the sake of argument at 50:50, the court can make a difference if somebody’s behaviour, somebody’s actions has dissipated the assets. Joint bank account, well in law you are jointly and severally reliable which means that the bank can come against one or both of you as it chooses. So if one person has got nothing and the other person is wealthy, the bank will obviously go at the wealthy one. But like I say, the court has the power to put that right. So in the finances, although it is as if you are jointly reliable, the court can make a different ultimate ruling. The first thing I would do is go to the bank and tell about the divorce and get that bank stopped. Put a freeze on it.

PR:                 Okay, now, I married my partner 10 months ago and she now wants a divorce. She said in an argument she only married me for a share of my wealth. I feel that I have been used so can I protect my assets from her?

MJS:                 Well I am afraid that the ‘gold digger’ is not a figment of the imagination; there are some very copulating people out there who fall in love not necessarily with the person but with the money. If the marriage has only lasted 10 months, then actually I have to say that the settlement that he would have to pay her would be minimal. The fact that she said this and the fact that it has broken down so quickly afterwards, my position would be, if I was representing him, I would start from nil and cheerio and see what happens.

PR:                 Right, I see. Finally, my husband of 22 years died recently and we have just found out that his will is over 25 years old. The will names his ex-wife but not me as the main beneficiary. Do I have any legal rights as his current wife and can I challenge the will?

MJS:                 Well, this is one of those cases that, as a lawyer, you look at it and you smile because the poor current wife will have been having an absolute fit when she read the will and she realised that he had left everything to his previous wife. Actually, the position is this. When you get divorced, any gift to a former spouse automatically fails. So if you leave a will and you have made provisions for somebody in your will who is a former spouse, unless you say in the will “we are getting divorced but I still want her to have this anyway” and make it clear that you don’t simply want it to fail on divorce, then the gift to that person automatically fails, the rest of the will still stands. However, there is another point. When you remarry, that will is automatically revoked, unless clearly stated otherwise in the will. So first of all the gift to the first wife failed on decree absolute and secondly the whole will failed when he remarried so she becomes entitled to his estate, subject to the testate provisions and it will be treated as though he died in testate. So she doesn’t need to worry.

PR:                 So it is very good news for that lady then isn’t it?

MJS:                 Well, exactly. It is excellent news. There is also the backup of the Inheritance (Provision for Family and Dependants) Act 1975 where the court looks at claims of dependants who haven’t had prevision made for them by the will. So there is that fall back as well. But it was one of those questions where you read it

MJS:                 You look at it and you think, well it’s failed and it’s revoked, it’s like an exam question.

PR:                 Very interesting indeed. Well there you are, sorry about the trouble with the phones; we are having that resolved at the moment

MJS:                 Don’t worry, it is great, I really enjoy your questions.

PR:                 Anyway, we got there in the end and we have got the news coming up shortly. Struggling to get the phones working this morning but we got there in the end, thank you very much Marilyn Stowe.

MJS:                 As always, it’s been a great pleasure. I really enjoy it, thank you.

Listen to Marilyn’s full interview on the Radio Verulam website (interview starts at 50 minutes)


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