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Helping your children buy a home? You should consider a pre-nuptial agreement

13 May 2019

Mrs A from Crawley asks, “I want to help my daughter and her fiancé buy a new home shortly by gifting my daughter the majority of the deposit.  How do I ensure my gift to her is protected?” 

You will want to ensure that your daughter benefits from your generous gift in the event she separates from her fiancé.  

The first thing to consider is how to protect your daughter’s interest in the interim, before the wedding, while they are cohabiting.  It would be sensible to advise your daughter to enter into a cohabitation contract and have a declaration of trust drawn up when purchasing the property.  

The majority of couples in this situation will simply proceed to purchase the property in joint names as joint tenants.  If this is the case then, upon separation, a civil court will usually apply strict property law and award each party 50% without taking into account their unequal contributions.  A declaration of trust, prepared by a solicitor, sets out the contributions made and the resulting share of the property that each party has a right to.  

“What about when they marry next year, should I insist they sign a pre-nuptial agreement?”

A ‘pre nup’ is a written agreement between two people contemplating marriage; it sets out how their financial affairs are going to be sorted out in the event that they divorce. 

Unlike many other countries, pre-nuptial agreements are not binding in England and Wales.  So, if your daughter was to divorce in the future, whilst the court will certainly consider the agreement in place,  there are no guarantees that it will be upheld. 

That said, recent cases have shown that courts are beginning to attach greater importance to these agreements, provided they are drawn up correctly.  

“Is there anything my daughter can do to ensure the pre-nuptial agreement is watertight?” 

To ensure the pre-nuptial agreement is as influential as it possibly can be, your daughter and her fiancé need to be entirely open and honest with each other about their respective financial positions.  They should each have their own solicitor representing them, as this will mean they receive legal advice to suit their position and circumstances.  Finally, it is best practice to enter into a pre-nuptial agreement at least 28 days before the wedding.

If all of the above is carried out, then should the relationship break down, a court is much more likely to be persuaded to adhere to the terms of the agreement as the basis of any ultimate financial settlement.

A pre-nuptial agreement is never a bad idea; it is particularly advisable where there is a disparity in the parties’ financial contributions, and for all general circumstances where there is a desire to plan for how assets may be divided in the event of a divorce. 

For advice on pre-nuptial agreements or to have one drafted, please do get in touch for a no obligation consultation; contact Marwa Hadi-Barnes directly or call us on 03333 231580 or by email at  enquries@dmhstallard.com.

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