BY Michaela Heathcote, a partner specialising in matrimonial issues at Taylor&Emmet Solicitors. Michaela deals mainly with matters arising from family breakdowns, particularly those relating to finances and arrangements for children following separation or divorce.
“Do me a favour, for your own good, put your name in your books right now before they get mixed up and you won’t know whose is whose. ‘Cause someday, believe it or not, you’ll go 15 rounds over who’s gonna get this coffee table. This stupid, wagon wheel, Roy Rogers garage sale, coffee table.” When Harry Met Sally… Columbia Pictures, 1989.
Whilst I wouldn’t recommend taking legal advice from a romantic comedy, Billy Crystal’s character in the marvellous “When Harry met Sally…” was on the right lines.
The average age for first marriages is rising and an increasing number of divorces involve second or subsequent marriages. This means more people are embarking upon wedded bliss at a time when careers have been established and significant assets accumulated.
It is hardly surprising, therefore, that my department receives a growing volume of enquiries from clients wishing to protect assets when their marriage breaks down.
Pre-nuptial or pre-marriage agreements are not particularly romantic, nor do they have any binding legal effect in England and Wales. However, they are being taken into account and can be very persuasive – particularly if a number of pre-conditions are satisfied. Key amongst these is the requirement that both parties receive independent legal advice and each provides full and frank disclosure of their financial circumstances.
If nothing else, pre-nuptial agreements provide an opportunity to record what assets each party holds. This is helpful, as the courts in recent high profile cases have distinguished between “matrimonial” and “non-matrimonial” property, i.e. assets acquired during the marriage through “common endeavour” and non-matrimonial property or assets such as inheritances, gifts and property brought by the parties into the marriage.
My advice to anyone contemplating marriage would be to consider whether entering into a pre-nuptial agreement is appropriate.
An appeal decision made following an Isle of Man case suggests that an agreement drawn up after marriage is more likely to be upheld by the divorce courts. As a result, I am now advising clients to make a pre-marriage agreement and another following the wedding, confirming both parties wish to be bound by the earlier terms.
I would not go so far as to suggest writing your name inside your books, but carefully drafted pre and post-marital agreements could save you from spending a fortune (to quote Billy Crystal again) in phone calls to the legal firm of “That’s mine – This is yours.”
By Michaela Heathcote, a partner specialising in matrimonial issues at Taylor&Emmet Solicitors. Michaela deals mainly with matters arising from family breakdowns, particularly those relating to finances and arrangements for children following separation or divorce.
You can contact Michaela at Taylor&Emmet on 0114 2184000
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