General Articles

Every week, our brilliant family law expert, Caroline Gordon-Smith, will be answering your quarantine quandaries.

If you’ve got a family issue you’d like help with - however big or small - remember to submit your problem here.

I AM A 55 YEAR OLD WIDOW WITH TWO GROWN UP CHILDREN. I AM VERY COMFORTABLE FINANCIALLY HAVING INHERITED FROM MY LATE HUSBAND. I WOULD LIKE TO MARRY MY CURRENT PARTNER BUT I AM CONCERNED ABOUT WHAT WOULD HAPPEN IF THE MARRIAGE FAILED. MY PARTNER HAS BEEN DIVORCED PREVIOUSLY AND AS A RESULT HAS ONLY MODEST ASSETS. IS THERE ANYTHING I CAN DO TO PROTECT MYSELF ?

It is understandable that you are concerned about protecting your position and that of your children - particularly as your wealth derived from their father.

You could choose not to marry at all and simply cohabit with your partner. Provided you keep your assets separate from your partner (i.e in your sole name) then those assets should be safe if your relationship broke down, however long the relationship has lasted. Despite popular misconception, there is no such thing as “common law marriage” and your partner would have no automatic claims against you. If you wanted to live in a property that you jointly own then be careful to document your respective contributions to the acquisition of that property. Without that, the property could end up being divided equally - despite any unequal contribution to it. To fully protect yourself you could both enter into a cohabitation agreement that would set out what would happen should your relationship break down. It’s important that you both have the opportunity to seek legal advice on it, if you did decide to go down that route. In the event that your cohabitation survived until your death, your partner may have a claim against your estate, particularly if you were supporting him financially. It is important to draw up a will and seek advice about potential claims from your partner when doing so.

If marriage is your preference then your vulnerability to financial claims from your husband in the event of a divorce will (among other factors) depend on how long the marriage lasts. The shorter the marriage, the less significant his claims are likely to be. However, a lot of divorces depend upon facts specific to the case in hand, so it’s difficult to say with certainty how much your partner would get. To try to achieve certainty (and protect your position), you could both enter into a pre-nuptial agreement setting out what you agree should happen in the event of divorce. While the court is not obliged to adhere to the terms of a pre-nup, it does have to take it into account and in recent years, courts have begun to take such agreements more seriously and stick with them. To ensure you stand the best chance of the agreement being upheld, it is important that your partner has the opportunity to take legal advice, that you fully disclose to each other your financial resources and that the agreement is finalised well before the wedding date.

Even if you don’t enter into such an agreement prior to your wedding, you can still do it afterwards. A post-nuptial agreement has the same impact as a pre-nup and arguably more so, as there can be less claim of any undue pressure.

You need to think carefully about what is right for you and your children and the issues involved can be complex. Ensure that you take specialist legal advice before making any decisions.

Caroline Gordon-Smith practiced as a divorce lawyer for 32 years and was formerly head of the family department at Stevens & Bolton LLP