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Interview

Ask the Lawyer – with Anderson Strathern

Sarah Howden
28th Apr. '21

Chances are we’ve all wanted, or could have benefited from, the guidance of a lawyer at some point in our lives. Perhaps it was a legal expert to help us circumnavigate a messy breakup, to advise on inheritance disagreements, to let us know our landlord or tenant rights or what to do when work on our home goes wrong. Or maybe it was legal guidance on exciting life events like a new business venture or starting up as a mumpreneur.

Whatever our needs over the years, having insider knowledge from a legal expert would have been amazing. And empowering. So when leading Scottish solicitors Anderson Strathern wanted to partner with EGG we were excited. Really excited. After all, they have specialist advisers in every area, providing legal advice to businesses, individuals, families and the public sector. For us, it feels as if we have our very own lawyer on speed dial, helping us understand the legal world a bit more and whether we need their advice across so many different areas.

Over the next few months we’ll be tapping into the wealth of legal expertise at Anderson Strathern and covering everything from employment law, property litigation and commercial litigation through to inheritance and wills. This month, it’s all about Family Law. We chat to EGG Danielle Edgar about the key questions you’ve been asking.

So what is Family Law and when might we need this specialist lawyer?

Family law used to be known as divorce law. Nowadays, family lawyers are much more than just divorce lawyers – there’s advising on family or relationship aspects, for example – although divorce remains an important part of what we do.

Where a marriage does not last, a family lawyer helps unravel the family finances, assists in arrangements for the children and helps a client come out of a divorce and move forward having achieved a fair and reasonable outcome.

A family lawyer can also help guide couples through the potential issues of financial decisions they take and seek to preserve family wealth from potential claims. Where a separation happens, we can advise on the appropriateness of any claim, whether to be made or defended.

Whether you’re just starting out, getting engaged or are part of a couple entering marriage or exiting on a divorce, a family lawyer is there to help.

For cohabiting couples, how important is a Living Together Agreement or a Cohabitation Agreement?

Whether or not you are going on to get married, the majority of couples in Scotland will fall under the definition of ‘cohabitants’ in the Family Law (Scotland) Act 2006. This sets out what cohabitants can claim if there is a separation or where the relationship ends by the death of one of them.

These claims are limited and may not cover all the person’s needs or reflect the wishes of a partner who has died. Couples may think that because they are living together they automatically have the same rights as married couples – but this is not the case.

Living Together Agreements and Cohabitation Agreements are agreed contracts which can include a record of what you own, how you will manage your finances throughout the relationship and how you will deal with various matters in the event of separation. For couples considering cohabitation, as unromantic as it sounds, a Living Together Agreement is often useful to set out who gets what, including repaying any family loans. Living together agreements are specific to the individual circumstances of a couple and can include as much or as little as they wish.

Cohabitation Agreements are also advisable where parties wish to contract, so far as possible, out of the 2006 Act. Or they wish to control the level of any claims made. Both agreements help avoid the stress and cost of a disputed claim at the end of the relationship.

Often people feel uncomfortable having this conversation with their partner, but making an agreement before cohabiting can strengthen a relationship and give both partners a greater sense of security, especially if there are children involved. Discussing attitudes to finances and future financial plans can serve as the backbone to cohabitation, making it much easier to plan your life together.

Buying a house together without being married is so common. What is your advice when it comes to safeguarding your finances?

For many couples, a key is likely to come before a ring. Whether you’re living together, planning to live together or getting married, it’s important to seek expert legal advice to make sure you’re as well prepared and well informed as you can be for the different life events that might arise.

For many couples buying a house together, the conversation about where to buy, what they can afford and the colour to paint the living room wall is difficult enough. But, for unmarried couples it is an absolute necessity to extend that conversation to cover what should happen to the house and the money you have each put into it (or not) if the relationship ends.

A big question unmarried couples need to discuss is whether you need a pre-purchase agreement and there are several points which must be considered. First, if the initial deposit is being gifted by a third party, such as parents or siblings, it should be properly noted and conveyed in the mortgage application. A pre-purchase agreement setting out to whom the deposit or full purchase price is to be credited to if the relationship comes to an end, is important. You may also wish to reflect the title to the property to reflect the unequal contribution.

The deposit contribution may also be a loan from family, so how much needs to be repaid, by when, and who will pay it, should be covered in an agreement. In the unfortunate event of the relationship coming to an end, uncertainty about the nature of the loan – especially where it is not properly documented, can cause problems.

Another important point to consider is when one person is contributing more to the purchase price or deposit than the other. This is so common and can lead to all sorts of issues if the couple of have split up and are selling.

Where couples are planning on living together “equally,” a pre-purchase agreement may not seem necessary. But issues such as when a house will be sold and who will get to buy out who if the relationship ends are incredibly important.

Sadly, if a relationship ends on bad terms it’s very easy for one former cohabitant to hold the other to ransom over the sale or transfer of a property. Because of the wide range of scenarios and the discretionary nature of the rights of cohabitants in Scotland, advice is always recommended.

Are pre-purchase and pre-cohabitation agreements the same?

A pre-purchase and pre-cohabitation agreement are largely referred to as one in the same. However, a pre-cohabitation agreement also includes reference to discharging any rights you and your cohabitant may make against one another in the future. This protects you against fairly unclear legislation which came into effect in 2006 as part of the Family Law (Scotland) Act 2006.

Depending on your circumstances, it may be (and often is!) appropriate to opt-out of those rights and instead contract on what you want to happen with a pre-purchase agreement.

Prenups aren’t just for the rich and famous, apparently. Do you agree? If so, when should we be considering a prenup?

Once the preserve of Hollywood A-listers, a prenuptial agreement, or prenup, is now fairly common. It can be a simple ring-fencing exercise of pre-marriage assets and wealth, or it can involve a more complex review of potential inheritance, protection of family money and company restructuring.

Admittedly, it’s not the most romantic of subjects to discuss with your future spouse but a prenuptial agreement is a good idea, especially as people these days tend to marry later when they have already built up some wealth. Prenups are essentially future spouses taking control of how divorce may affect them, financially or otherwise, at an early stage. We see time and time again that divorces aren’t as challenging or expensive outcome when a prenup has been entered into.

We would always recommend having the prenup discussion at an early stage. The closer to the wedding day it gets, the more concern there may be about leaving the prenup exposed to challenge in the future, for example, on the grounds of one party feeling pressured into signing the agreement.

 

To discuss your family matters in confidence with Danielle contact egg@andersonstrathern.co.uk

Divorce & Family Law | Anderson Strathern Solicitors | Edinburgh & Glasgow

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