If like a certain Prince you are fast approaching a special day, you may have spent the last few months planning the wedding venue or band, what to wear, your photographers, florists and caterers. The number of members of the general public who are to attend, or their identity, probably won’t have troubled you like it has Prince Harry and Meghan Markle. Although not as exciting, what should also be added to your essential wedding checklist is reviewing or making your Will.
When you marry or enter into a civil partnership your Will is revoked, even if you didn’t want it to be, unless a specific exception clause is included.
If you have not made a Will now is a perfect time to do so. The Will can be prepared “in contemplation of marriage” and as such be drawn up before your wedding day. It would come into effect when signed and would continue to be effective following your marriage. You can then leave for your honeymoon to a far flung destination with peace of mind. No doubt Prince Harry has already been advised to look at this.
Unfortunately, if you have not made a Will (or have, but it is revoked by your marriage) and then die, your estate would pass under the intestacy rules. The effect of these depends on the value of your assets and the family members you leave behind, but it may be far from what you would have planned.
This makes it really important to think about things if you are marrying for the second time and particularly if you have children from a previous relationship. The intestacy rules are rigid and particularly risky if your family circumstances and/or assets are complicated. Better to tackle it now, than a family row erupt between a step-parent and step-children following your death.
People marrying for a second time often wish to balance the needs of their new spouse with ensuring that their assets pass down to their own children. As a solution, a trust could be included in your Will which allows your new spouse use of your assets during his/her lifetime, the marital home, say, but which after his/her death passes to your children. No doubt Prince Harry’s father took advice on this before he re-married.
Consideration also needs to be given to how you and your new spouse own your assets to ensure that the terms of your Will take effect.
So, when planning your new happy life together, please do not forget about your Will. You should also consider making or reviewing a Lasting Power of Attorney (LPA).
The Royal curse
While Harry and Meghan may represent the positive future, sadly the Royal history has been characterised by its fair share of break ups and divorces. The Office for National Statistics warns us that, far from being unique, they share this fate with 42% of married couples, particularly those within the first ten years of marriage.
Like Harry, though, let’s focus on the positive. The considerable majority of marriages survive and indeed thrive. For those that don’t, divorce can be an expensive and traumatising experience which is often compared to bereavement. So why not try and take steps to reduce the risk of its worst excesses? This brings us on to pre-nuptial agreements.
I know that they are hardly considered the height of romance, but in the right case, it is perhaps arguable that they can help a marriage. We can all imagine how such things as an enormous disparity in wealth, pre-existing solely owned assets or businesses, or the fruits of a previous traumatic divorce can drive a wedge between a couple. If both parties know what will happen to all of these in the event of a marital breakdown, it might take that anxiety away.
Pre-nuptial agreements are not binding in this country. That said, a court on divorce will give effect to a freely entered into pre-nup provided the couple fully understand its implications, unless it would be unfair to hold them to it. Fairness arguably rests on two strands. The first relates to the nature of reaching the agreement. The more you can do to ensure equal bargaining power and knowledge for each party, the better. So, for instance, have it completed long before the wedding, ensure that both parties have had independent legal advice and full and frank disclosure of the financial position of the other.
The other strand of fairness relates to the contents of the agreement itself and is more tricky to determine but sensible advice is the best way to navigate this.
If a pre-nup leaves either party unable to meet their needs, it will not be found to be fair. This will also be the outcome if a court finds (rarely) that a party deserved compensation for their role in the relationship but a pre-nup did not provide it. Where a pre-nup can earn its money, though, is in limiting what assets should be treated as the “fruits” of the marriage, which are often shared between a couple on divorce. So certain capital, of the various characters I discussed above, could be excluded from being divided by the court if a couple should divorce.
You might like to think of a pre-nup as like an insurance policy for a whole host of reasons. Like an insurance policy, you never want to have to use it. Also like an insurance policy, you can never guarantee that it will achieve exactly what you hope. Some insurance policies will deal with the whole of any claim. So also will many pre-nups. Some insurance policies, however, will not pay out at all. Rarely, a few pre-nups may find themselves unable to protect a particular spouse. A good number will fall somewhere in the middle; of some significant help but not solving everything. Like any insurance policy, though, a pre-nup cannot give you any protection whatsoever if you do not have one.
For the increasing number of couples living together before marrying, a declaration of trust or cohabitation agreement is a sensible course to determine a couple’s property interests if they should split up etc. Beware, though, that if the couple then marry, such a declaration or agreement may not have the same effect at all. If in doubt, best to bite the bullet and enter into a pre-nup, even if it plans the same outcome.
For more information on these issues do not hesitate to contact a member of our Succession and Tax, or Family teams.