What documentation will help protect my assets on separation or divorce?

24th August 2022

Increasingly in relationships, one part or the other bring assets or funds which they wish to protect. This is as true for the rural community as it is for any other. As an unmarried couple, it is important that ownership of the property as recorded in the purchase documentation reflects your intentions and reality.

Although many people think it, there is no such thing as a ‘common law marriage’ – so if there is a dispute when a relationship breaks down, this can be extremely costly and burdensome to navigate.

While a declaration of trust will formalise interests in the property ownership, a cohabitation agreement can do this and can also help regulate the financial affairs of the relationship. For example, if one person is making a greater contribution to the mortgage payments in order to make up or ‘match’ a deposit payment by the other.

Similarly, if there is only one legal owner then the agreement may help specify how certain actions by the non-owner will not lead to any suggestion that they have some form of financial interest in the property.

For married couples, a prenuptial agreement can help. I often see couples about to marry where one of them has established assets, an inheritance, or assets from a previous relationship. Increasingly, parents provide financial assistance to buy property and that too requires protection as does their own or family business perhaps, or farm. While prenuptial agreements are not automatically legally binding, a properly drawn and fair agreement is one that a court will have to consider when exercising its discretion.

The aim of both documents is to provide a clear path to what happens on separation or divorce; to be the definitive guide as opposed to being drawn into expensive, time consuming and stressful litigation.

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