With all the excitement, happiness and work that a wedding
entails, it's not surprising that few of us take the extra
steps of planning for the future. For example, how will your
finances get unravelled if the relationship breaks down or if one
of you dies?
In the past it was less common for there to be mention of
pre-nuptial or post-nuptial agreements or the need to make wills
when planning a wedding. And not many unmarried couples buying a
house before they married considered a co-owners' agreement or
made wills. Often this was because a lot of us like to think:
'It's not going to happen to me'.
There has been uncertainty in Jersey law for some time about the
effects of prenuptial agreements, or 'pre-nups' as they are
commonly called. Recent developments in English case law have
established that the existence of these agreements can be a factor
that the court will give weight to, if they meet certain criteria,
such as being kept up to date with changing circumstances and being
generally fair to both parties.
Couples without such an agreement, who then go through a
divorce, will need to agree on a range of issues such as whether
the house is kept or sold, taking into account their own and any
children's needs; what they can afford; and what is fair, at a
time when trust and understanding can be at an all time low. Not
always an easy task.
If the parties cannot agree on those issues, then the court will
need to make those decisions for them, frequently at great
Where a property is jointly owned, regardless of whether the
parties are married or not, if the relationship breaks down and the
parties are unable to agree on what to do with the jointly owned
property, a legal remedy available is "licitation"
proceedings before the Royal Court. This is, in effect, an enforced
sale of the property, by public auction. Either party may then ask
the court to divide the proceeds of sale on the basis of
contributions by each of the parties, i.e. did one pay the mortgage
while the other paid certain bills? This procedure is extremely
costly and time-consuming, eating away at those very proceeds that
are being argued about.
Jersey also has the added complication of housing
qualifications. Generally, a person without housing qualifications
is not always able to own or take over the ownership of the
property following the breakdown of a relationship and this is an
area of law upon which detailed legal advice is needed. It is
crucial for people in this position to protect their future by
entering into a co-habitation agreement and a pre- or post- nuptial
agreement, to secure their share of the joint investment and
identify how the financial arrangements will work following any
breakdown of the relationship.
The courts will protect and provide but this can be an expensive
and slow procedure. While planning your big day, it is worth taking
time to plan for your future by taking legal advice and considering
matters together as a couple.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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