Brodies: Think ahead to protect your family
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There can be few situations more stressful than the breakdown of a relationship. The separation of finances, homes and care arrangements for children all require to be dealt with.
This is difficult at any time but can be especially so during a period when the cost of living in the UK is the highest it has been for 40 years. Soaring energy prices, high fuel costs and economic uncertainty can cause strain on relationships and may also result in complexity in dealing with finances upon separation.
Relationship insurance policy
With the cost-of-living crisis an ever-present obstacle for individuals and families, many couples may be considering the benefits of pooling resources and moving in together. That may be one partner moving into the property of another, or partners purchasing property together. When renting or purchasing a property, insurance is one of the first items on the checklist. However, many cohabiting couples fail to consider the relationship insurance policy; a cohabitation agreement.
A cohabitation agreement may seem unromantic, however, having an agreement in place to regulate how financial matters will be dealt with upon separation, could save many thousands of pounds in legal fees in the future. Cohabitation agreements are flexible documents that can be as complex or straightforward as required. They can regulate contributions to the property from savings or contributions to various aspects of household expenditure.
Similarly, when marrying, if ring-fencing assets, protecting generational wealth or simply preventing uncertainty is a goal, you should consider a pre-nuptial agreement. Life is full of uncertainty, and while it is impossible to account for every eventuality, planning for your family’s financial future is a way to save money and emotional strife in the long-term.
Dispute resolution
If there is no cohabitation or pre-nuptial agreement, there is nothing to regulate arrangements and the law will decide. So, what happens next? There are a few options:
- The ‘traditional’ solicitor negotiation whereby parties go back and forth negotiating the position via their lawyers;
- Mediation via an accredited family law meditator who specialises in resolving financial and/or child-related issues in a manner designed to ease communication between each party;
- The collaborative approach whereby specially trained family lawyers and the parties come together in a series of “round-table” discussions in an open forum;
- Letting the courts decide. This approach is by far the most risky, costly and time consuming and should be a last resort when all other possibilities have been exhausted.
If you want to be sure what will happen in the event of your relationship break down, don’t leave it to chance – come to an agreement when times are good to provide peace of mind when times are tough.
Spousal aliment and child maintenance
Spouses have an obligation to maintain one another, before and after separation. This obligation is known as ‘aliment’. Aliment is assessed on a needs and resources basis, having regard to the earnings and personal circumstances of the paying and receiving party. In difficult economic times, when needs are exceeding resources, it is likely we will see an increased request for alimentary payments between separating spouses.
Parents in Scotland are obligated to financially support their children until they reach the age of 16 or up to the age of 25, if they are engaged in education or training for employment. With mortgage and inflation rates skyrocketing, some individuals may receive pay increases in line with inflation, others won’t be so lucky.
Again, having a formal agreement in relation to maintenance can provide peace of mind.
Certainty for the future
We don’t know how long we will be living in these difficult economic times. Uncertainty is never easy.
However, there are things that can be done now to protect your family in the event of any future or current relationship breakdown. Taking control now can provide peace of mind for the future.
Are you ready for changes to Scotland’s cohabitation laws?
Any day now the Scottish Law Commission (SLC) will publish its report following the consultation on reform of the law relating to cohabiting couples.
The number of cohabiting couples continues to grow faster than the number of married couples and lone parent families.
Thousands of people in Scotland live together in committed and mutually dependent relationships without being married or in a civil partnership.
The law is currently set out in the Family Law (Scotland) Act 2006 and gives cohabitants various limited rights.
However, the law has been criticised as being out of date, unclear and overly complicated.
The report will deal with a number of points including the definition of ‘cohabitant’ and whether wider remedies such as pension sharing and maintenance should be available to separating cohabitants in the same way as they are to married couples.
Irrespective as to the content of the forthcoming SLC report, people living in a cohabiting relationship can take steps, at any time, to protect their assets in the event of a future separation.
Family law solicitors can prepare agreements which are signed by both parties.
A bit like prenuptial agreements, these cohabitation agreements provide certainty by detailing what is to happen to various assets in the event of a separation.
These articles were supplied by Sarah Lilley, partner and family law expert and Eildh Conacher, family lawyer at Brodies.
Brodies LLP
Clava House
Cradlehall Business Park
Inverness
IV2 5GH
Tel: +44 (0)1463 214 390
