Marrying later in life - asset protection

The media is reporting a significant rise in the older generation often termed "baby boomers" marrying for the first or subsequent time. There are a host of reasons cited with research perhaps unsurprisingly suggesting markedly different drivers between men and women.

When embarking on marriage the first thing on people's' minds tends not to be to a desire to protect themselves if things go wrong. However when marrying later in life in most cases assets tend to have been accumulated through working for many years. Inheritances may have been received or life time gifts from older parents as part of tax planning. The parties may also have children/ grandchildren from previous relations whom they want to pass assets to as opposed to them being brought into the 'marital pot'.

England and Wales is one of the most generous divorce jurisdictions in the world and as such it is sensible to take precautions when embarking upon marriage. Unlike other European countries there is no separate property regime in this jurisdiction and instead the sharing principle applies. This means that the Courts may determine that what may be otherwise be classed as non matrimonial assets can be invaded/ utilised to meet the other parties needs if they cannot be met from assets accrued during the marriage

It is possible for parties to protect themselves through entering into a pre or post nuptial agreement. Such agreements can set out what each party classes as separate property and limit the others financial claims in the unfortunate event of later marital breakdown. The agreements need to be entered into with proper legal safeguards and each party needs independent legal advice. They are however a useful way of protecting assets and providing for what each party would be entitled to "just in case". Furthermore recent decisions of higher courts and legal commentators have endorsed such agreements for parties marrying for the second or subsequent time usually later in life.

The negotiation of such agreements need not involve acrimonious discussions or lead to pre marital tensions as is sometimes envisaged and as a consideration may lead couples to shy away from entering into such an agreement for fear of causing upset in the lead up to the big day.

If discussions are needed as to the detail then the family mediation process is a very useful forum which can assist as opposed to more traditional negotiations between solicitors.

For more information contact Wendy Campbell on 0113 320 5000 or @email

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