Family & divorce

New divorce consultation hoped to bring clarity

It is hoped that a new consultation launched by the Law Commission will bring clarity to the ‘opaque area of the law’ surrounding divorce settlements, according to a Midland legal expert. As it stands, the law gives no clear guidance on what is considered a fair financial outcome making it difficult for lawyers to predict how a judge might determine a fair or reasonable division of assets.

Unmarried couples and bankruptcy

The recent case of Kernott v Jones has helped to provide some clarity as to how the court decides the level of a co-habitee’s interest in a property where the legal title is held jointly by introducing the concept of fairness into the decision-making process. However, the increasing impact of “fairness” on a court’s decision may only muddy the waters for a Trustee in Bankruptcy when to establish the level of a co-habiting bankrupt’s interest in the property for the purpose of realising that asset in the bankruptcy estate.

Clarification on property disputes between cohabitees

More than half of couples in the 16 – 44 age group are now cohabiting rather than being married and many of them will jointly own their property. But they rarely have a formal agreement that clearly sets out how the property should be divided in the event of the relationship breaking down. The Supreme Court has handed down their decision in Jones v Kernott, a case that concerned the allocation of shares in a jointly owned property after the relationship ended.

Inheritance rights of a cohabitee

The Law Commission has recommended that in certain circumstances, unmarried couples should have the same inheritance rights as spouses when a partner dies without making a will. Cohabitation is widespread and increasing. According to the Office for National Statistics, the number of cohabiting couples in England and Wales will increase from 2.3 million in 2008 to 3.8 million in 2033. Yet the Law Commission has suggested that cohabitants are among the people least likely to have a will, meaning that surviving cohabitants are often left with nothing.

Are prenuptial agreements legally binding in the UK?

Prenuptial agreements were recognised as enforceable under British divorce law for the first time in the case of Katrin Radmacher and Nicholas Granatino. Before Katrin Radmacher and Nicholas Granatino married in 1998, the wealthy German heiress ensured that her husband signed a prenuptial agreement promising to make no claims on her fortune if the marriage failed. Katrin Radmacher was a wealthy woman with shares in a family company worth around £50 million and further assets of around £55 million all of which were inherited before her marriage. At the time of the breakdown of the marriage Mr Granatino was earning £30,000 as an academic at Oxford University.

Bankruptcy and a trustee's interest in the matrimonial home

One of the criticisms of the old insolvency regime was that a trustee in bankruptcy, who had failed to immediately realise their interest in a bankrupt’s family home, was able to recover this interest several years after the date of discharge of the bankruptcy order. In most cases, this interest would have increased substantially in value due to recent spiralling property prices. Amendments introduced by the Enterprise Act 2002 seemed to address the balance more in favour of the bankrupt.

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