Wilson Browne Discusses… Getting Married

A marriage is more than the beautiful white dress, ring, and big day.  A marriage is a legally binding financial contract in which you are agreeing that, in the event of future divorce, all assets and liabilities acquired both pre and during your marriage, as a starting point, will be divided equally between you both.  Essentially ‘what’s mine is yours’ is no sweet sentiment, but rather the legal position in the event of divorce.

You will therefore need to consider whether you are comfortable making this financial agreement.  If you are not, you will need to prepare a document which essentially varies the terms of that financial contract to those you feel comfortable with. For example, you may wish to protect received or future inheritance, a property you are bringing into the marriage, a company, shares, or pension.

This is done by preparing a Pre-Nuptial Agreement.  A Pre-Nuptial Agreement offers a certain level of protection setting out the ownership of belongings, both current at the time of the marriage and those that will accrue during the marriage, and what will happen to them in the event of a breakdown of the relationship.

While these documents are not strictly legally binding in England and Wales, if prepared in accordance with the recommendations of the court which include, but are not limited to, both parties seeking independent legal advice, full financial disclosure, the documents being prepared as a deed and signed in the presence of an independent witness, and not being signed under duress, the document is likely to be enforced by the court in the event of later divorce proceedings, subject to the court being satisfied that the terms of the Agreement are ‘fair’.

It is therefore important that the document is reviewed at regular intervals (often 5 years) or after any significant life events, such as the birth of any children, to prevent the court setting the Agreement aside. The document must be signed at least 28 days prior to the date of marriage and it is therefore important to contact a solicitor to prepare the Pre-Nuptial Agreement approximately 3 months prior to the date of your wedding to provide sufficient opportunity for the document to be drafted, amended and signed.

The first thing to remember when getting married, is that marriage revokes any earlier Will that you may have made. So, if you were to get married and not have executed another Will, then your spouse would inherit your Estate in accordance with the Rules of Intestacy, which means that they would be entitled entire Estate if you don’t have children. If you do have children, then your spouse would be entitled to your chattels and a statutory legacy of the first £322,000 of your cash assets and the balance would be split 50:50 between your spouse and children.

If you want to have a Will prepared before you are married, you can do so in anticipation of marriage. This means that the Will can be prepared in such a way that upon your marriage the same would not be revoked and the Rules of Intestacy as detailed above would not apply.

Everyone has a “Nil-Rate Band” of £325,000 before Inheritance Tax is payable on your death (note: lifetime gifts reduce this figure) and over and above that figure, Inheritance Tax is chargeable at 40%. From the perspective of Inheritance Tax, the union of marriage is beneficial. If you were to leave your entire Estate to your spouse under a Will, then on the death of the second of you, you are entitled to claim a double nil-rate band meaning your Estate would need to exceed £650,000 before Inheritance Tax was to become payable. There are additional thresholds that can be claimed if you have property that you have left to direct descendants.

This might sound obvious but both parties must have the capacity to consent to marriage.  Many people with diminished capacity as a result or illness or brain injury who could appear to have capacity to make such a decision but may not understand the legal relationship that a marriage creates and the rights and entitlement to property and assets on marriage, death and welfare benefits.  If in doubt further advice or assessment should be sought if you are concerned about a vulnerable person.

Be aware of relationship fraud and report any concerns to the police or action fraud.

Once you are married you will have certain rights to be consulted on the health and welfare issues of your spouse in the event they are in an accident or illness and don’t have the capacity to make those decisions themselves.  However getting married does not give you an automatic right to make such decisions and those remain with the health care professionals delivering the care.  You should consider making a Health & Welfare Power of Attorney if you want to appoint your new spouse to have legal authority to make Health and Welfare decisions on your behalf if you find yourself in a position where you can’t make them yourself.

In most circumstances Marriage creates a right to receive pension benefits of your spouse. You should consider whether this is line with your wishes or whether you need to update your nomination form or letter of wishes to your pension trustees.

From a conveyancing point of view, very little needs to be considered. Although you may wish to update the Title Register with your married name if appropriate. You may also wish to consider whether you wish to change how you hold the property between you (joint tenants or tenants in common). This may be relevant if you are updating your will.