“What happens to me financially if a once-happy relationship unfortunately breaks down?”

BY PHILIPPA CUNNIFF, PARTNER OF FAMILY LAW AT GILSON GRAY

February 11 2020 was a mammoth day for #MarriageEquality as the first same-sex marriage took place in Northern Ireland. After years of vigorous campaigning by Love Equality, Northern Ireland is now almost fully aligned with the rest of the UK.

That means, today, we’re in a situation where – for the first time – same-sex couples have nearly the same rights across all of the UK, the difference being that civil partnerships can be changed into marriages everywhere apart from Northern Ireland.

I’ve been a lawyer for 21 years, qualified to practice in England and Wales as well as Scotland. As Partner and Head of Family Law at Gilson Gray, I often deal with the questions that arise when a relationship breaks down.

I’ve worked with countless clients, all coming to me with different arguments and concerns about the same overall issue: “What happens to me financially when a once-happy relationship unfortunately breaks down?”

What does marriage mean, legally speaking?

Now that marriage is an option for every same-sex couple in the UK, it’s worth pausing, being realistic, and thinking about all of the legal and financial consequences of a marriage. Marriages are big commitments – you’re creating a legal relationship that can only be truly ended with a court order.

Of course, separation is always an option, but divorces only happen because a court says so. It’s therefore useful to think about what marriage actually means from a legal point of view.

Marriage and civil partnerships bring a host of rights and obligations – lots of financial as well as personal commitments. One consequence of marriage is that spouses have a duty to “maintain” one another – which means providing financial support.

Formal maintenance comes into place when couples separate, which can last until the divorce is final (and in some cases, goes beyond a divorce). Scotland usually has a shorter period of post-divorce financial support, but in other parts of the UK maintenance tends to go on longer.

Parts of the UK have different rules on how assets are treated but, as a general rule, whatever you acquire between when you got married and divorced is up for sharing when the marriage ends. This includes pensions, savings and investments, property, and everything else of value.

A word on debt

Some good news though! Contrary to popular belief, even if you’re married this doesn’t make you responsible for your spouse’s debts – if the debt is in one spouse’s name and that name only. But if the debt is in joint names, you can sometimes be made to pay both shares.

Similarly, if your spouse has debt problems, this can affect your credit history. If you or your spouse comes into debt during your marriage, this will usually be treated as a “matrimonial liability” and taken into account in the splitting of assets.

What about a prenup?

There are ways to try to avoid the normal legal rules applying to your marriage, through Prenuptial (or Postnuptial) Agreements – written agreements that are signed before (or after) you get married. Usually, these Agreements look to ringfence certain assets so that they’re not up for grabs in a divorce. 

Although there are so many “prenup” templates out there, they’re tricky and complicated to put together. There are also a number of potential pitfalls, so you shouldn’t be downloading a prenup from any online site – make sure you have proper legal advice.

Some people mistakenly look at prenups as something that says you’re not serious about a marriage or committed to your partner – in fact it’s the complete opposite. It shows just how serious you are about the commitment you’re going to make – they’re simply an insurance policy against something nobody hopes will happen.

While having marriage as an option to everyone is a much-welcome, long overdue development, we have to remember that marriage isn’t just about romance and commitment on a personal level – it brings with it so many legal rights which are sometimes forgotten about in the excitement of planning a wedding…

About Philippa Cunniff

Philippa is a Partner and Head of Family Law at Gilson Gray. As a dual-qualified lawyer, Philippa is qualified to practise in England and Wales as well as Scotland. Specialising in Family Law, Philippa deals with a wide range of issues. She has particular expertise in complex jurisdictional issues and in the resolution of financial disputes, as well as extensive experience in both negotiation and litigation.

She regularly deals with cases with an international dimension and is one of only eight Scottish-based Fellows of the International Academy of Family Lawyers. Highly experienced in wealth protection issues, Philippa often acts in the negotiation of pre-nuptial and post-nuptial agreements. Philippa has been ranked at the top Band in the highly-renowned Chambers UK Guide to the Legal Profession for the past ten years.

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