Wealth & Asset Protection: Sensible financial planning for you and your family
Wealth & Asset Protection
Sensible financial planning for you and your family
This information is offered on the basis that it is a general guide only and not a substitute for legal advice. We cannot accept any responsibility for any liabilities of any kind incurred in reliance on this information.
We understand that dealing with your family affairs requires more than just sound advice and technical excellence. We invest the time to get to know our clients’ circumstances, needs and preferences to deliver commercially informed and practical results for you.
We advise on all aspects of relationship breakdown and asset protection/preservation issues, including:
• Pre and post nuptial agreements
• Advice for cohabitants, including cohabitation agreements
• Divorce or separation and the associated financial issues
• International family law
• Financial provision for children
• Wills and Estate planning
• Trusts
• Powers of Attorney
• Property ownership
• Immigration, visas and nationality
Pre & Post Nuptial Agreements
Securing your future for your own peace of mind
Getting married is one of the biggest commitments that you can make in life. Weddings take months to prepare (frequently at a significant cost) but often we forget to consider the financial consequences that come with being married. It is important to be aware of your rights and responsibilities. In the unfortunate event of a marital breakdown, the court in England & Wales adopts a discretionary approach to dividing marital assets based largely upon the principles of needs, fairness and sharing. In general terms, it is known to be a fairly generous system with the starting point that all marital assets will usually be divided equally between the parties (subject to various exceptions).
At the outset, all assets of either party form part of the so-called ‘matrimonial pot’ available for division between the parties in order to meet needs (and satisfy the principles of fairness and sharing). This means that even assets acquired premarriage (sometimes before the parties even met) and as a result of gifts or inheritance will nonetheless form part of the initial ‘matrimonial pot’ and will therefore be subject to the court’s discretion.
As it currently stands, the only way to protect those assets and to pre-determine a financial settlement in the unfortunate event of marital breakdown is to enter into a pre or post nuptial agreement (prenuptial agreements are entered prior to the marriage, post-nuptial agreements after the marriage has taken place but the effects are the same).
In the event that you are considering marriage (or have already married) and you have;
• Assets of your own which were acquired prior to the marriage (e.g. property, investments, trusts, pensions, cash)
• Previously been married and/or have children from a previous marriage or relationship
• Business assets or interests that you wish to protect
• An interest in a family trust
• Received gifts from third parties or are likely to receive gifts from third parties during the course of the marriage (such as friends or relatives – including property deposits)
• Received inheritance from third parties or are expecting to receive inheritance from third parties (such as friends or relatives) during the course of the marriage
It would be prudent to speak to one of our specialist family lawyers to find out about how you can protect that wealth in the form of a pre/post nuptial agreement. Whilst it may seem like an unromantic proposition, setting out your intentions from the outset can save considerable time, expense and emotional strain in the long term.
Key Contacts
Andrew Spearman Partner andrew.spearman@laytons.com
+44 (0)20 7842 8000
Cohabitation Agreements
The myth of the common law spouse
There are more people living with partners (or friends/relatives) in the UK than ever before. It is the fastest growing family type in this country and this trend is set to continue. Despite this however, there is very little public awareness of the rights of cohabitees (or perhaps more importantly, the lack of rights for cohabitees).
It is fairly widely publicised that the court system in England & Wales adopts a discretionary approach to dividing finances in the event of marital breakdown with the starting point being an equal division of assets acquired during the course of the marriage (regardless of who purchased them). By stark contrast, the court has very limited powers in respect of cohabitants in the event of relationship breakdown and the governing law is based on the principles of equity and trusts (as opposed to family law legislation).
There is also a widespread misconception that long-term cohabitants will be afforded the rights of a ‘common law spouse’ entitling them to protection in the event of relationship breakdown. Unfortunately this is not the case and as a cohabitant, you could find yourself in a very vulnerable position in the event of relationship breakdown (particularly if you do not own the property in which you are living) as the court does not have any power to transfer shares in property. This is especially important where the parties also have children.
As a result therefore, if you are considering purchasing or making a financial contribution to a property or living with a partner, friends or relatives, you should strongly consider obtaining legal advice from one of our specialist family lawyers. They will be able to tell you more about cohabitation agreements which can predetermine and record in writing (in the form of a contract) your wishes in respect of property ownership, meeting household expenses and dividing personal belongings both during the course of the period of cohabitation and in the unfortunate event of future relationship breakdown. Setting out your intentions from the outset can save a great deal of time, expense and emotional strain in the long term.
Key Contacts
Andrew Spearman Partner
andrew.spearman@laytons.com
+44 (0)20 7842 8000
Bianca Martin Solicitor bianca.martin@laytons.com
+44 (0)20 7842 8000
Property Ownership
Whose house is it anyway?
You may not be aware that there are two different ways in which property co-owners may hold the beneficial interest in a property (i.e. the equity in the property). There is an important and significant distinction between the two and it is important that you fully understand the differences:
Joint tenants
Under a joint tenancy each owner has an indivisible share in the property and all owners are equally entitled to the whole property. Crucially, the right of survivorship applies which means that immediately upon the death of one of the owners, their share automatically passes to the remaining owners and will not form part of their estate for probate purposes.
Tenants in common
Under a tenancy in common each owner has a distinct beneficial share in the property. It is advisable for the co-owners to indicate expressly the proportions in which they hold the property, rather than leaving this to be implied from the circumstances and the financial contributions made by each co-owner. This is particularly important if you are contributing towards a property purchase in unequal shares and we can ensure that this is recorded expressly at the time of purchase. The right of survivorship does not apply and your share of the property will pass under your will or under the intestacy rules.
In today’s society, it is common place for family members to contribute towards a property purchase (e.g. parents providing a deposit). They may wish to ensure that their contribution is legally protected either in the event of a relationship breakdown or when the property is sold. We work closely with our colleagues in the Trusts, Estates & Private Client department to ensure that any third party contributions will be adequately protected, if so desired.
Key Contacts
David Lewis Partner
david.lewis@laytons.com
+44 (0)20 7842 8000
Mark
Reis Partner
mark.reis@laytons.com
+ +44 (0)20 7842 8000
Wills and Estate Planning
A Will is a constantly evolving document and we recommend our clients to periodically review and update their Wills, particularly when their circumstances in life change, for example when they get married, have children or get divorced. Given that a Will made prior to marriage is automatically revoked upon marriage unless it is made in contemplation of marriage to a particular named person, it is important that couples who are planning to get married consider either making or reviewing their Will to prevent any unintended consequences.
This is of particular importance in circumstances where one or both parties to the marriage own assets jointly with individuals outside the marriage or if they wish to leave assets to someone other than their intended spouse.
Making a Will enables individuals to choose who will administer their estate when they die and critically, who their assets pass to. If someone dies without a Will, the intestacy rules will apply to their estate and this could well mean that their assets do not pass to those who they would have wanted them to pass to.
Estate planning and making Wills are the mainstay of our work. Having acted for many years for a range of individuals, including those who own and lead all manner of businesses, we have seen a good deal and found many innovative ways to address the estate planning needs of our clients.
Our expertise, combined with an ability to think laterally and come up with creative solutions, enables us to craft bespoke estate-planning solutions designed to meet a range of objectives, including minimising inheritance tax, protecting family wealth and ensuring individuals’ assets pass to the right person.
We work closely with our colleagues in the Corporate & Commercial and Family teams where appropriate to ensure that solutions fit from every angle. We will also work with professionals (such as accountants, financial advisers and investment managers) with whom clients have an existing relationship, or can introduce professionals we know and trust where necessary.
Key Contacts
Ian Burman Partner
ian.burman@laytons.com
+ +44 (0)20 7842 8000
Simrun Garcha Partner
simrun.garcha@laytons.com
+44 (0)20 7842 8000
Trusts
We are able to advise our clients on the benefits of setting up trusts as a method of wealth protection, including the benefits and tax consequences of setting up discretionary trusts which can be a flexible way of protecting wealth through generations.
We have a wealth of experience in advising clients on setting up trusts and our expertise enables us to find the most appropriate structure for a client taking into account their aims and objectives. There may be circumstances in which a traditional trust structure may not be appropriate for a particular individual and we are also able to advise on setting up alternative structures such as family LLPs where appropriate.
We are also able to advise and put in place Declarations of Trust for use in circumstances where parties are purchasing a property together, recording each party’s interest in the property and protecting financial contributions made by third parties, such as a parent.
We work closely with our colleagues in the family department in order to ensure that any trust assets can be protected in the event of a future relationship breakdown, if so desired.
Key Contacts
Ian Burman Partner
ian.burman@laytons.com
+ +44 (0)20 7842 8000
Simrun Garcha Partner
simrun.garcha@laytons.com
+44 (0)20 7842 8000
Immigration, Visas and Nationality
Love has no borders
Relationships and families are frequently multinational, which brings an additional layer of complexity when travelling the globe or seeking to make a new country a home. Obtaining the correct visa for what you want to do, ensuring spouses, partners or children can accompany you, helps to build a new family life. Life’s challenges in the event of birth, separation, divorce or death often throw a curveball at maintaining the right to reside.
There are many different visas available for the UK. Our team will assess individual clients’ available immigration options and provide practical advice on a suitable immigration journey, from the short-term to the long-term.
Family Visas
Most commonly, a Spouse, Unmarried Partner or Fiancé(e) of a British or settled person in the UK, will need to meet several key criteria in order to be successful. This includes English language ability and an assessment of accommodation, especially where there are children. The most difficult element for these visas is the financial requirement where, typically, the sponsor (on whose relationship the visa application is based) must earn a minimum amount. Forward planning for these visa types is strongly encouraged.
European Nationals
Since the UK left the EU in 2020, all newly arriving European nationals must have a visa in order to live and work in the UK. This could be a family visa or any which the individual is eligible for, but most commonly these tend to be the working categories, such as the sponsored work routes. The EU Settlement Scheme has largely closed to new applicants except in limited circumstances.
Surrogacy and Adoption
Families having a child through overseas surrogacy or adoption will need to consider immigration and nationality from an early stage in the process. Whether the intended parents are visa holders, permanent residents or British nationals, ensuring the child is able to come back into the UK and obtain the necessary permission to live here is crucial.
Permanent Residence and British Nationality
Many families will look to secure their longterm future in the UK through obtaining permanent residence and, where possible, British nationality. This is normally after five years’ continuous residence (visa route specific) followed by 12 months of having permanent residence. Strict absences limitations apply and there is an expectation of making the UK a main or permanent home, which can have other implications.
Our expertise includes advice on and preparation of applications, as well as regularisation of stay in the UK, navigating complex factual backgrounds, representation with the Home Office, and assessing refused applications for future reapplication.
