5 Situations You Might Not Realise You Need the Advice of a Family Solicitor

24th March 2023

Most people assume that a Family Solicitor should only step in to help when the worst happens and relationships completely break down. However, people often choose not to marry or getting married later in life, having already accumulated certain wealth in their own right. Because of this, we are increasingly advising clients about how to protect their interests before embarking on a new chapter in their life.

Here are 5 situations where the intervention of a family solicitor is essential:-

1. Moving Your Partner in With You

Living together “as if husband and wife” in your property can create problems on separation. Whilst your former partner would not have the automatic right to continue to stay in your property after separation, he or she could apply to the court for the right to continue to occupy your property in certain circumstances.

If your partner also contributed towards the mortgage or helped improve the value of the property in other ways, you could find yourself facing a claim for financial provision on cessation of cohabitation. A simple Agreement – drafted by your Family Solicitor – can be entered into before cohabitation commences. This regulates what would happen in the event of separation to prevent an ex-partner overstaying their welcome or making financial claims against you. 

2. Buying a Property

If you are buying a property with your partner or fiancé, and you are putting in more, or all of the money, for the deposit a formal written agreement can be put in place. This can be used to protect your equity in the event of separation.

In the absence of any such agreement, on separation, you would be left having to argue (often in court) that you should get some or all of your money back. A situation requiring a Family Solicitor anyway. Instead, a Pre-Nuptial or Pre-Cohabitation Agreement could save you lots of cost and uncertainty in the long run.

It is also possible for married people to protect equity going into a property if the funds were saved up pre-marriage or received by way of gift or inheritance during the marriage. Post-nuptial Agreements are becoming more common as a result of wealth being passed down the generations for inheritance tax planning.  

3. Gifting Money or Assets to Your Children

If you are thinking of gifting money or assets to your children, it would be wise for you and your child to take advice from a Family Solicitor before doing so. Particularly if your child is married or cohabiting with another party.

Funds received by way of gift or inheritance during a marriage are not matrimonial property, provided that they do not change form. However, inherited funds rarely end up being safely ringfenced in a bank account for a rainy day. Instead, we see, time again, gifts being put towards the purchase of a larger property or being used to pay down a joint mortgage.

If a separation later occurs, the party who received the gift or inheritance will have the burden of proving that those funds should be carved out of the “matrimonial pot” and treated differently to jointly built assets.

For cohabitants, the situation is even more complex, given that the party who received the funds would need to argue that their former cohabitant has been economically advantaged by the gift to their economic disadvantage. Such disputes between unmarried parties are more likely to end up in court that due to the strict time limits for making claims on cessation of cohabitation.

As a parent or family member you can do things to help your child such as:

• Recording the purpose of the gift
• Who it was intended to benefit
• Making similar provisions for other family members and
• Encouraging your child to have a conversation with their spouse about the possibility of entering into a Minute of Agreement.  

4. Amalgamating Your Pension Pots

Those who are married should consider taking Family Law advice before taking steps to amalgamate smaller pension pots accrued with previous employers.

Whilst it can often make sense to have all of your pension in one place for administrative and cost reasons, this can have unintended consequence where any of the pensions (or part of them) were built up pre-marriage.

Transferring pre-marriage pensions into a new pension pot will convert the pre-marriage pensions into matrimonial property. This will give your spouse a right to share in their value, usually equally, unless you can argue that equal sharing would not be fair in the circumstances. Family Solicitors could create a Post-nuptial Agreement, which would record how your pensions should be treated in the event of separation, before any pension transfers take place.

5. Setting-up Your New Business

Setting up a new business venture is exciting, but it can also be expensive and uncertain. Business owners are often advised to put their spouse or partner “on the books” as an employee or shareholder for tax purposes.

Before taking such advice, consideration should be given to the difficulties which can be caused by having an ex-partner or spouse involved in your business if a separation were ever to occur.

You could find yourself facing employment law issues or a battle to gain control back of your own business. Taking advice from a Family Solicitor at the outset could prevent such issues arising.

Do Any of These Situations Apply to You? Speak to Our Family Solicitors!

Planning for what happens in the event of a potential separation is a level of pragmatism that can actually ease the pressures of living as a couple. As disputes over money are often a sticking point for many couples, knowing these worries are taken care of can relax tensions.

And this is what we do at Garden Stirling Burnet, our focus isn’t just legal splitting couples up, but also creating safety nets to enhance relationships. Much in the same way a Partner’s Agreement in a new business is about planning ahead, and not ending the brand-new enterprise right-off-the-bat.

So, if you find yourself in a situation such as these, don’t consider needing legal guidance a sign of weakness. Our East Lothian based Family Solicitors can help you navigate and strategise through them. And in the end, this will cost you far less than if the matter went to court – something we like to avoid for our clients.

Call us today on 01620 824 996 to speak to a qualified Family Solicitor, or fill out our form to get instant advice and free information.

Categorised in: Family Law