People chat all the time about friends or family getting together and splitting up, yet misconceptions are rife about their rights and obligations in these situations. Here are five common misconceptions.
“Prenups are only for the rich. And they’re not binding.”
Wrong on both counts. A prenuptial agreement allows any couple to agree which assets will be counted, or not counted, as matrimonial property if they split up. Unlike in England and Wales, prenups are generally legally binding in Scotland, if certain conditions are met when they are drafted.
“If you don’t make a prenup before marriage, it’s too late.”
It may be too late for a prenup, but not for a postnup! A postnuptial agreement can be made at any time after a marriage or civil partnership and, like a prenup, it sets out what should happen to your assets if you split. It’s a useful option for couples whose financial situation changes, perhaps because of a windfall or business restructure, or where a change in circumstances has shifted the financial balance.
“The woman always gets custody of the kids.”
Well, firstly in Scotland, we now talk about ‘residence’ and ‘contact’ rather than ‘custody’ and ‘access’. And secondly, the gist of the sentence isn’t true. When parents separate, there is no requirement to have any orders granted in relation to children, unless it’s necessary where there is a genuine dispute. The court, when deciding on an issue such as residence, will then look at the best interests of the child.
“Cohabitees get the same rights as spouses or civil partners.”
Not so. Couples living together do have some rights in Scotland, but they don’t have the same automatic rights as married couples or civil partners if they separate or if one of them dies without making a Will. It may be possible to make a financial claim against an ex- or from their estate, but there are no hard and fast entitlements.
“If you pay more of the deposit on a shared home, you have a right to get it back.”
Again, this is not the case. Let’s say you buy a property in joint names with a friend or partner and you put £30,000 into the deposit. There’s no automatic right to get it back if you sell up. The way to assure this is through a cohabitation or co-purchasing agreement.
Philippa Abernethy, Solicitor, Family Law.
To return to the main contents of lindsays life issue 24, please click here.
