This article was first published in Fine & Country magazine.
Whether you are contemplating marriage or civil partnership, in a long-term relationship and living with your partner or thinking about estate planning for the future, it is useful to consider the options available to best protect your assets.
First, it is important to dispel the myth that exists around common-law marriage – there is no such thing in Jersey. No matter how long you have lived with a partner or how long your relationship has lasted, unless you marry or enter into a civil partnership, you have no ability to make a claim on the assets of your partner or to seek financial support for yourself should the relationship end.
Financial support for children is different and there is an ongoing obligation for a parent to support a child, whether or not they were married to, or in a civil partnership with, the other parent.
Many couples will choose to live together or to purchase a property together without being married or in a civil partnership. In this situation, you would be wise to consider a co-habitation agreement.
This is a legally binding contract between couples, drawn up by lawyers in circumstances where each party has taken independent legal advice and set out his or her respective financial position.
The agreement specifies what will happen to the property upon a breakdown of the relationship: whether it should be sold and, if so, how the sale proceeds should be shared, or whether one or both owners should have the option to buy-out the other’s interest in the property. It can provide a timeframe within which any sale or buy-out should occur. It can also specify how the living expenses are to be shared during the subsistence of the relationship. These agreements are often reviewable upon a change in circumstances such as the birth or adoption of any child and any marriage or civil partnership.
If you are considering marriage or civil partnership, you might wish to think about a pre-nuptial agreement.
An agreement can also be made after you have tied the knot – a post-nuptial agreement. This normally occurs in situations where it has not been possible, due perhaps to time constraints, to finalise a pre-nuptial agreement before the nuptials.
Pre-nuptial agreements are a practical way to protect and preserve family wealth in the event of a relationship breakdown. These agreements are commonly used where there is a family business, a trust or significant inheritance prospects. They are also useful in second and subsequent marriages or civil partnerships and especially where one person has a child or children from a previous union.
A pre-nuptial agreement requires careful drafting and expertise if it is to stand the best chance of being upheld by a court, so expert advice should be sought.
While not yet legally binding, a pre-nuptial agreement is taken into account by the court. Parties are expected to be held to their bargain unless the result would be unfair. As such, they represent the best insurance policy to protect wealth where marriage or civil partnership is in contemplation.
A Will should be an essential part of your future planning. In addition, lasting powers of attorney, created while you are in good health, can protect you and ensure that your wishes are followed in the event of you not being so in the future. You should revisit your Will after any significant change in circumstances, to ensure that it continues to reflect your wishes.
Everyone’s situation will be different. There is no one size fits all when it comes to best protecting assets. It is vital to seek specialist advice. Our experienced team at BCR Law LLP is here for you for when it matters.