Eastern Eye (UK)

Matrimonia­l finance: Is my inheritanc­e protected?

‘A PRENUP OR POST-NUPTIAL AGREEMENT CAN GIVE SOME SECURITY’

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COUPLES divorce for many reasons and family lawyers have predicted queries could rise in the wake of lockdown.

This prediction could well be coming true. In June 2021, the Ministry of Justice (MoJ) revealed that from January to March 2021, there were 30,420 divorce petitions, up by 2 per cent on the previous quarter in 2020.

In September 2021, the MoJ published its April to June 2021 statistics, which found there were 26,301 divorce petitions, with matrimonia­l cases up 7 per cent.

These high statistics could be due to the delays in the court system caused at the start of the pandemic, resulting in the court backlogs which grew in successive lockdowns.

In 2020, HM Courts & Tribunal Service (HMCTS) announced that even if the number of days that judges sit are sustained for the remaining financial year so that the number of concluded cases improve and face-to-face hearings are increased, the backlogs are still due to grow in family law.

HMCTS predicted it may take three years before the backlog returns to pre-crisis levels.

It was also reported that between July 2020 and July 2021, Citizens Advice said the divorce section of its website was visited 419,359 times – a 14 per cent increase on the previous year.

If couples do decide to divorce, what do they need to know about how assets are divided? How is inherited wealth considered by the courts? How can inheritanc­e be protected?

When couples divorce, their assets are either classed as “non-matrimonia­l assets” which is

property and money from a source outside the marriage, or “matrimonia­l assets”, which is property and money acquired during your marriage.

In most cases, the family home will be treated as a matrimonia­l asset. In England and Wales, matrimonia­l assets automatica­lly go into the asset ‘pot’ to be divided between the divorcing couple.

Inherited assets aren’t automatica­lly excluded from the matrimonia­l assets pot. It depends on the specifics of your case if your inheritanc­e is shared.

In order to decide if inheritanc­e should be added to the matrimonia­l pot, the court will look at the couples’ financial needs – as defined under the Matrimonia­l Causes Act 1973 – which considers the financial needs of any child and the financial needs, obligation­s and responsibi­lities which each of the parties is likely to have in the foreseeabl­e future.

If the matrimonia­l property isn’t sufficient, then the non-matrimonia­l property, including inheritanc­e, is added to the overall matrimonia­l pot to cover the financial needs of both parties after

the divorce.

Should I get a prenup or postnup? A pre-nuptial agreement is a legal deed couples can enter into before marriage, which outlines what will happen to their respective property and finances in case of divorce.

A post-nuptial agreement is essentiall­y the same as a prenup, but it is agreed during the marriage not before. Such an agreement can give an individual some protection of all of their property – including inherited assets. The agreement can make it clear what should happen to the assets in the event of divorce. However, there is no guarantee, and each case will be dealt with on its facts.

Is my spouse inheritanc­e?

entitled to my

If, for example, an Asian woman inherits substantia­l wealth from her parents, what right does her spouse have to it during the divorce process?

Opinions differ as to whether inheritanc­e should be shared between divorcing couples and there are many legalities concerning these issues, so it is not a simple answer.

Some feel that, even though they’re divorcing, their spouse is entitled to an adequate share of the inheritanc­e, while others believe it is theirs to keep as it has been passed on to them from a family member. Again, the particular facts of each case are likely to be relevant and it is important to obtain legal advice.

Whatever’s decided, it is vital to obtain a clean break consent order, which means that after your divorce you have no financial ties to your ex-partner and he/she can make no further claim against you.

If you’re thinking about divorcing your spouse and are concerned about your inheritanc­e, it is best to get specialist advice from a family law solicitor, who can advise you on how to protect your assets. You can use the Find a Solicitor section on the Law Society website: solicitors.lawsociety.org.uk/?Pro=True

Lubna Shuja is the vice-president of the Law Society of England and Wales. She will become the first Asian president in October 2022 and the seventh female president when she takes office.

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 ?? Shuja ?? LEGAL ADVICE: In he vent divorce, is ital o obtain lean break on nt order, which eans ending al financial ties to he ex-partner; (inset elow) Lubn
Shuja LEGAL ADVICE: In he vent divorce, is ital o obtain lean break on nt order, which eans ending al financial ties to he ex-partner; (inset elow) Lubn

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