Divorce in Later Life: Remarriage or Cohabitation?

Author:
Sarah Rose
Family Law and Divorce Solicitor
Date:
01/07/2021

It’s never too late to enter into a new relationship but it is important to plan for the future and think about your finances.

And at this point in your life, there’s a lot to think about when entering a new relationship, including:

  • What may happen if the relationship breaks down
  • How you will pay for care fees if one of you falls ill or needs full time care
  • Updating or writing a Will
  • If you have been married before and are receiving spousal maintenance from your ex-partner, this may stop when you remarry or cohabit
  • Estate planning

You might be happy just living together unmarried, but sadly, the law for cohabiting couples doesn’t give you legal rights to claim financial support as marriage does.

But if you’ve already been through a divorce, you may be more cautious about your relationship and assets, or if you’ve never been married, you may want to protect the assets you’ve built up over a lifetime.

Everyone is different and our Family Law Solicitors can help you plan for your future based on your situation. Here’s what you should know about your options:

Remarriage

You may know especially if you have been married before, that your assets and income will become joint property when you get married, even if they are held in one person’s name.

So it’s important to think about how you want your assets to be dealt with should your marriage end or how you want to protect any assets that you acquired from a previous divorce.

Prenuptial and postnuptial agreements can prevent hostility and arguments between you if your relationship comes to an end, which means the entire divorce process can be much quicker and smoother.

Prenuptial Agreements

A prenuptial agreement is a written contract prepared before your wedding that outlines what will happen to your finances if you ever divorce. Here’s what you need to know:

      1. You’ll each need to take independent legal advice to make sure you both understand how the prenup works and the implications of what you’ve signed.
      2. You should start drafting your prenup at least 28 days before your wedding so you have time to negotiate and sign the agreement, which will be effective as soon as it is signed. If a prenup is left until the last minute, the Court may not accept it on the basis it was rushed into or because there is a risk it was entered into under duress.
      3. It’s a good idea to include review clauses so that from time to time you can review the agreement and amend if needed to keep it up to date with your financial situation.

Although prenups are not legally binding, if your marriage breaks down the Court will look at your prenup and if it is fair and reasonable the terms of the prenup can be turned into a Financial Order.

If the prenup is not fair and reasonable based on your circumstances at the time of your divorce, the Court may need to be reconsider the division of assets that was agreed. But with later life divorce, a prenup might work well if you don’t expect your financial situation or income to change too much from when you got married.

Postnuptial Agreements

You can prepare a postnup any time after getting married. In the same way as a prenup, the postnup will outline what you and your partner want to happen to your finances should your marriage break down. Again, you will both need to take independent legal advice and isn’t legally binding.

A postnup could benefit you if you have assets that you owned before or after getting married that you want to protect or your circumstances have changed since you signed your prenup.

Living Together as an Unmarried Couple

It’s important to understand that if you don’t get married you won’t have the same rights as a married couple. This means that any assets in your sole name, such as savings and pensions, will remain yours even if your relationship ends.

And if you’re not married or in a civil partnership, you won’t automatically inherit each other’s estates when one of you dies. So you should think about writing a Will or amending an existing Will if you wish to leave anything to your partner.

You can also get a cohabitation agreement if you decide to live with a partner rather than getting married in later life, which will set out what happens if you separate and how your assets will be divided.

Cohabitation Agreements

A cohabitation agreement can deal with:

  • Ownership of property
  • Bank accounts and money
  • Pets
  • Bills
  • Any other assets that you share

In the same way as a prenup, it can give you a clear understanding of what would happen if your relationship breaks down and help you avoid any disagreements.

If you own the property that you share with your new partner, a cohabitation agreement can agree for this to be kept separate and prevent your partner from making a claim over the property if you ever split. But if your partner makes any contributions to the property, the mortgage, or improvements to your home such as renovations, they could claim an interest in it in the future.

If the cohabitation agreement is done properly and you both take independent legal advice, it will be a legally binding contract and can be enforced by the Court.

If you decide to get married in the future, you can end the agreement or turn the terms into a prenup or postnup instead.

We can help you to draft a prenuptial, postnuptial or cohabitation agreement depending on your circumstances, or we can just advise you where you need it.

For initial legal advice call our Family Law and Divorce Solicitors

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