Divorce and protecting family wealth

As a family solicitor specialising in the financial aspects of relationship breakdown I work closely with my colleagues in our Wills & Probate team, led by Partner Rachel Damianou.

Clients often require help from both teams to ensure their interests are taken care of fully.

A relationship breakdown (be the parties married or not) is a significant change in circumstances.

It is always wise to deal with both the immediate financial consequences (payment of the mortgage and maintenance for the children for instance) and consider matters on a longer-term basis to avoid unintended and unwanted consequences.

In relation to the latter, if you own a property jointly it is often on terms such that if one party dies their share will automatically go to the other joint owner.

If the other owner is not whom you would wish to benefit and you’d prefer your share to go to someone else, your children for example, steps need to be taken.

These can quickly and cheaply be taken with the writing of a Will and severance of what is called “the joint tenancy”.

Another scenario might be the elderly parents of an adult child not wishing their assets to fall into the hands of a son/daughter in law that is separating from their child. Alternatively, if their child is to be married and they are disapproving of the union believing the intended son or daughter in law are only getting married for money’s sake.

This anxiety can be overcome in many cases using a “discretionary trust” in the parent’s Will.

The family assets are controlled by Trustees (often your executors) who have discretion to pay capital or income to the beneficiaries (perhaps their children and grandchildren) of the trust as they see fit.

By guiding the Trustees as to their intentions, for example protecting assets from any divorces, the anxiety can be overcome.

Such arrangements cannot be water tight as Divorce courts have wide powers however if it is seen that the trust is designed to cascade wealth down the generation’s courts are more likely to disregard the trust assets as a resource available for the divorcing offspring or their spouse.

Early advice on these matters is always wise, so if you are contemplating separation or are worried about the impact of your children’s relationships breaking down please contact Rhona Royle in our Family team or Rachel Damianou in the Wills and Probate team.

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