Red flags- things to be aware of when entering or exiting a relationship

Saturday September 7, 2019

Red flagsEARLY STAGES

  • Thinking of obtaining a pre-nup? This should be signed at least 28 days before the marriage. Please leave good time to negotiate one, at least 3 months (preferably 6 months) before. A post nup may in some circumstances be more appropriate.
  • Beware Soft Loans – If a family member or friend is lending you money, you should enter into a formal loan agreement otherwise it will be considered a “soft loan”. Courts will not recognise soft loans and treat them as not having to be repaid.
  • Seek advice before leaving the family home – Living with a former partner is hard but knowing your rights is essential before you make any decisions to leave.
  • Protecting your interest in the family home – If you are not a registered owner but have a financial interest in the home, please seek advice on how to protect these interests.
  • Contributions to family home – if you and your spouse/partner have made different contributions to the home, there are steps you can take to protect your interests.
  • Cohabitation v marriage – can’t decide which is best for your situation? Both afford different financial protections and there are pro’s and con’s to both status’s depending on your circumstances.
  • Imerman guidance – Be careful about looking for information concerning your spouse’s/partner’s assets. You may be potentially committing a criminal offence or can be subject to civil proceedings for doing so. Do not look at other’s emails or post.
  • Starting a new relationship before ending the last? – seek advice on how this can affect your financial situation.
  • Living together agreements – moving in with a new partner who is making contributions to help you with the mortgage? They may acquire an interest in your property.

COMMON MYTHS DEBUNKED

  • Advice from friends and family – each case is different, therefore seeking advice from family and friends who have gone through the process may not necessarily start you on right the route for your case.
  • Common Law Marriage – There is no such thing! Cohabitees do not have the same significant legal protection as a married couple.
  • Schedule 1 claims – even if you are not married, you can still potentially make a financial claim for any the children you may have with your partner.
  • It is not automatically a 50/50 division of the assets in financial cases – In most cases, finances are based on the parties’ needs and then a number of other factors such as contribution, inheritance etc.
  • Because the house is in your sole name does not necessarily mean you will get to keep the house.

DIVORCE AND FINANCES

  • Courts will look at the way your family circumstances and finances were structured in the past.
  • All agreed without solicitors? You still need a court order recording the financial agreement. It is best to have a solicitor to draft this to afford you the best possible protection.
  • CGT and Tax implications – these can be considerable and you may need financial planning advice.
  • If your partner/spouse is excessively spending and disposing of assets, urgent action will need to be taken by way of a freezing order.
  • Claims adding back into account sums that have been unnecessarily spent are difficult to sustain so you should not rely on them.
  • Pensions –expert advice will need to be obtained as to how best to share or divide or treat them within divorce proceedings
  • International elements – If there is the possibly of issuing proceedings in another jurisdiction by either party this should be explored quickly at the outset to determine which jurisdiction would be in your best interest. First in time often wins the race.

CHILDREN

  • Children’s needs will generally underpin any outcome for divorcing or separating couples. These needs are paramount.
  • “Custody” does not exist – Parents can not make claims for “custody” – there is now a presumption of shared care although that does not necessarily mean an equal sharing of time. Seek advice on how you can arrange for the children to spend time with both parents.
  • Travel abroad – generally you cannot take a child out of the country without the consent of the other parent, even for a holiday. You certainly cannot permanently relocate a child to another country without the other parents consent, even if its returning to your “home” country at the end of your marriage.
  • Relocation within the UK- If you are thinking about relocating when children are involved, you should first seek advice as to the consequences for the children and whether the other parent will be able to prevent the children being relocated.

DOMESTIC VIOLENCE CONSIDERATIONS

  • Calling the Police – the police are now more likely to press charges should they be called to a domestic violence incident even if you decide not to proceed yourself. Seek advice and weigh up your options if possible before matters get to the point you need to call the police.
  • Police calls to voluntarily attend the station – do not attend without legal representation, such a meeting may involve and arrest despite what the police may say at the outset.
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