Women – how to stay informed and protect yourself legally
The theme for International Women’s Day 2021 was ‘Choose to Challenge’ and I believe an important part of that ability to challenge is to understand your legal rights as a woman and ensure that you make informed decisions about your family life.
This article sets out some of the common relationship scenarios and considers how best to protect yourself in the event that your relationship does not work out as you hoped.
You choose not to marry. You meet a partner and he/she moves into your property which remains in your sole name. You do not have children.
What happens if the relationship fails? You’re protected… right?
Possibly but this depends on how you both organise your finances. There are many ways that you can inadvertently give someone an interest in your property despite not making a formal change of ownership at the Land Registry. For the best protection you should consider entering into a cohabitation agreement to formalise who is going to pay for what both during the relationship and in the event that the relationship breaks down.
You and your partner decide to purchase a property together. To assist you, your parents lend you a considerable amount of money as a deposit and to cover the costs of the purchase. Your conveyancing solicitor asks you whether you want to own the property as joint tenants (your partner will inherit the whole house if you die without the need to worry about inheritance tax) or as tenants in common (you each have your own share in the house which will pass under the terms of your will).
What happens if the relationship fails? Will your parents see the return of that money?
The answer is no, unless you have taken the right steps to protect that money. In most situations your parents will have gifted the funds to you and often your mortgage company will require your parents to sign a document confirming the funds are a gift. If you wish to protect the funds gifted to you by your parents you should choose to register the property as tenants in common and have a Declaration of Trust which sets out your agreement on the division of the proceeds.
You have been proposed to by your long term partner and the wedding is booked. You have assets from your own financial resources through gift and/or inheritance. Those assets are not matched by your partner.
What happens if the marriage later fails? Will you get the lion’s share of the assets which you owned before the marriage?
If the marriage fails, the division of the assets will depend on the circumstances at the time. Should you have children, their needs will be the first consideration of a Judge and it is only once needs have been met that a Judge is likely to consider other legal arguments such as pre-acquired or non-matrimonial assets. For the best chance of protecting your assets, you should consider entering into a pre-nuptial agreement.
You choose not to marry but you live with your partner and you have a child (or children) together. You agree that you will not work and be a stay at home mum.
What happens if the relationship fails? You are protected as a common-law wife… right?
Wrong. There is no such thing as a common law wife, no matter what the press or television tries to indicate to the contrary (I even saw common law wife as an option when getting a car insurance quotation which is legally wrong and perpetuates the myth). If you separate from a partner outside of a marriage, you have property rights (ie sharing in jointly held assets and retaining assets in your own name), and the right to receive child maintenance but you do not have the right to share in their solely owned assets nor do you have the right to spousal maintenance. For wealthier couples there may be some rights under Schedule One of the Children Act 1989 for assistance to cover housing and large items of capital expenditure but these rights are limited, especially when compared to the rights of a spouse.
You should, therefore, consider carefully whether you would wish to marry for the additional protection, consider whether you should take steps to become financially independent or how to remain financially independent if you are sacrificing your career. It may be that you wish to consider consulting a financial advisor together to talk about how to structure your finances so that you can be confident of meeting your capital and income needs in the event the relationship breaks down.
This does not cover all potential relationship models and you should always ensure that you take legal advice when making life changing decisions to cohabit, have children or marry. These four scenarios cover some of the key areas in which the law can assist you but there are other practical ways to protect yourself.
The often quoted phrase is quite apt – hope for the best but prepare for the worst!