Valentine’s Day legal advice
Love moves in mysterious ways, but should be built on commonsense and clarity.
As Valentine’s Day approaches, many couples will be taking the next step in their relationships by either moving in together or getting engaged. Now, while it may not be the most romantic angle, there are many legalities couples should be aware of. Keeping with the spirit of positivity for Valentine’s Day, let’s look at some practical suggestions.
Protect your assets: Consider a prenup agreement
As couples marrying or entering into civil partnerships have increased property rights and entitlements, many are now entering into prenuptial agreements. These contracts are a recorded agreement between you and your partner on a range of matters, such as removing properties or business interests from the matrimonial pot. They also outline how finances and assets will be divided in the event of divorce.
The agreement is usually led by the partner with the most assets they wish to protect, yet should protect both parties so neither is left financially vulnerable. Although commonly associated with wealthy individuals, prenup agreements are equally beneficial if you are marrying in later life, or getting wed a second time.
Til death us do part: Making a will
Under Scottish law, an existing will is not automatically revoked should you marry or enter into a civil partnership. Therefore, we recommend couples review their wills immediately after any change in circumstances.
If you don’t have one, you and your partner should make a will as soon as possible, due to the rights of succession that apply when getting married or entering into a civil partnership. Should one of you pass away, the surviving spouse or partner has ‘prior rights’, entitling them to a certain amount of property and possessions of the person who has died. Without a will, other family members may inherit less than the deceased intended due to these ‘prior rights’ rules.
You should also be aware any gift left in a will to your spouse or civil partner will fail if you divorce or dissolve the partnership. Similarly, any appointment as an executor will also fail. If you wish to retain your ex-partner as an executor or bequeath them something after separation, then your will must be updated accordingly.
Living under the same roof: Cohabitation of property
Whether a couple buy a property together or one moves into the other’s existing home, both parties need to understand their legal rights and position. In the case of the former, it’s vital to decide whether it’s best to purchase in pro indiviso shares or in ‘survivorship’. If cohabiting in one partner’s property, a cohabitation agreement can be useful and prevent much heartache if the relationship comes to an end in terms of occupancy rights, deposit refunds and evictions.
Plus, a cohabitant has property occupancy rights, so cannot be thrown out or evicted. Indeed, in the event of domestic violence, the unentitled spouse may seek court orders to have the owner removed.
Share the wealth: Earnings and outgoings
Both parties should be open about their respective salary and resources, and agree on a scheme of division/sharing of domestic expenditure, savings and personal expenses. Here, honesty is the best policy when it comes to personal expenditure – especially if one party has amassed considerable debts.
Remember, if you are financially connected to someone and that individual makes an application to borrow money (e.g. for a loan or credit card), the lender may take both party's credit history into consideration.
Children and family planning
This can be a complex issue. Do you both want to have a family now or in the future? Are there any children from previous relationships requiring accommodation or visitation rights? Contact issues with ex-partners will have to be considered in the case of the latter, while the inheritance rights of children from previous relationships will be impacted (or lost) if their parent goes on to remarry.
Of course, new relationships can also impact the wider family, such as grandparents and their access to children, which may need to be considered too.
Power of attorney
Looking to the future, couples should appoint a power of attorney (PoA) to deal with any financial, property or personal welfare matters in the future.
There are two types of power of attorney; the first, relating to your financial and/or property affairs, is known as a 'continuing power of attorney'. The second type is ‘welfare power of attorney’, which allows someone you have appointed to make welfare decisions for you. These powers cannot be exercised until such time as you have lost the capacity to make these decisions.
Having a PoA legally allows a nominated individual to manage any affairs in circumstances should they become incapable of doing so themselves. Furthermore, a PoA will save time and costs involved in appointing a Guardian as an alternative.
So yes, love is a wonderful thing, and is the glue that keeps a couple together. However, love alone is not enough - there has to be almost a business partnership too, with each playing their part within the rules. If things unfortunately go wrong, the fallout can be distressing and costly.
If you’re looking to get married or change your living circumstances, seek legal advice to avoid any issues that can be easily avoided or resolved amicably.