UK: Divorce/Separation – Protect Yourself And Your Family

Last Updated: 19 May 2015
Article by Jamie Kennaugh

In an industry where sports stars are often encouraged to settle down at a young age, and where the sums at play can be so significant, our Sports Private team have been carrying out a series of sessions aimed at providing advice on family arrangements. If one of these sessions is of interest, or if you simply would like a one-on-one discussion, please let us know. In this article, Jamie Kennaugh from our Sports Private team gives an overview of the key considerations for protecting yourself and your family from issues arising on the breakdown of a relationship.

The breakdown of a relationship can prove to be extremely damaging, both emotionally and financially. Although at the outset of a relationship it might seem difficult to envisage a bitter and prolonged court battle in the event of a separation, this is all too often the reality.

England is widely known as the divorce capital of the world, making it even more important to take advice about the way in which you can protect yourself, and your family, in the unfortunate event of a relationship coming to an end.

The courts in England & Wales, compared with those in other jurisdictions (including continental Europe), have a reputation for being more (and often far more) generous to the financially weaker party. This can encourage litigation, which is rarely in the wider interests of the family as a whole, and can lead to unwanted media attention, particularly when one or both of the parties are well known public figures.

Although nuptial agreements are not (yet) legally binding in England, they are extremely persuasive in the English courts if they are done properly. It can seem like an unromantic way to enter into a marriage or a civil partnership, but in the event of your relationship breaking down at a later stage, a pre or post nuptial agreement can prove to be an effective way in which to create more certainty and clarity about your financial arrangements. In turn, this reduces the likelihood of an expensive and unpleasant legal battle, which can cost hundreds of thousands of pounds.

Even if the court arena cannot be avoided altogether (you cannot oust the jurisdiction of the court), provided the agreement has been entered into properly (both you and your partner must have independent legal advice) and it is not unfair, you are likely to be held to the agreement. At the very least, the provisions within the agreement should colour the judge's view, reducing the stress and uncertainty of litigation.

There is no set formula or precedent, which means that a nuptial agreement can deal with your unique financial and personal circumstances, including the following:

  • Prior wealth – protecting wealth/assets that you have built up prior to the relationship.
  • Family home – it can determine how the family home (or any future family home) will be dealt with, for instance sold or transferred to one of you.
  • Asset split – how assets built up during the relationship/marriage are divided. In the English courts, the starting point is an equal division of all assets. A nuptial agreement can provide for an alternative and unequal split.
  • Maintenance – how much maintenance, if any, the financially weaker party will receive. Depending upon the circumstances, the English courts can, and often, make "joint lives" maintenance orders, otherwise more colloquially known as "a meal ticket for life". If the relationship breaks down when you are both still relatively young, as the paying party you might have to pay maintenance to your former partner for decades to come.
  • Contributions – your exceptional contribution (by virtue of your sporting skill), which has led to the generation of the family wealth, can be recognised in the asset split agreed.
  • Confidentiality/Privacy – additional protection in relation to the confidentiality of documents/personal information can be agreed. In addition you can seek to agree to resolve matters outside of court (through arbitration).
  • Jurisdiction/Law – you might be able to agree in what country (and/or under what type of law) the proceedings will take place in the event of a breakdown in your relationship. This is particularly relevant if you have a connection with another country.

These types of agreement are not only relevant in the event of a marriage or a civil partnership; if you are planning to cohabit with your partner, you should also take advice. A cohabitation agreement can regulate your rights and obligations as a result of living with your partner. Although a cohabitee has limited rights, there are certain circumstances when your partner could make a claim against you, particularly in relation to your property/home (even if you are the sole owner). Entering into an agreement can avoid the costs, uncertainty and acrimony in the event of a dispute at a later stage.

KEY ADVICE

Whether you plan to cohabit, marry or enter into a civil partnership, or if in fact one of these is already a reality, take legal advice about how you can protect your position. A lengthy court battle can have serious financial and personal consequences. Aside from the financial ramifications, the litigation can take a toll on your performance as a sports person and it can damage your personal family relationships and reputation. Take out an insurance policy to protect yourself and your family against this; enter into a bespoke agreement, tailored to your personal circumstances.

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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