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Don’t put off your divorce

Don’t put off your divorce

Family law solicitor Simon Mortimer discusses a latest case concerning tenants in common and why you shouldn't put off your divorce.

A surprising number of married couples don’t get divorced or sort out all their financial affairs when they separate and this can cause heart breaking problems later.

Norman Martin and his wife, Maureen separated 19 years before his unexpected death.  They never divorced but soon after separating, Mr Martin started to live with his new partner, Joy Williams and they lived together for 18 years until his death.   3 years before Mr Norman’s death, he and Ms Williams bought a house between them as tenants in common which meant that when the first of them died, half the house would go to their estate and half to the survivor.

Unfortunately Mr Martin never made a will, so on his death, his share of the house went to his wife under the Intestacy rules.  This left Ms Williams with the unenviable prospect of only owning half the house she lived in so she had to bring a claim under the Inheritance Act so that her partner’s share would go to her instead of his estranged wife.  Fortunately for Ms Williams she succeeded but after she had incurred over £100,000.00 worth of costs which Mrs Martin now has to pay as well as her own legal costs. 

Certainly if Mr Martin had made a will, leaving his share of the house to Ms Williams, it would have made clear what his wishes were and it would have left his wife with the job of making a claim rather than his partner.   Many commentators have also pointed out that this is another illustration of why we need a new law to govern the rights of property between parties who live together as opposed to parties who are married and there is no doubt such a law is overdue.  

However there is no doubt that if Mr and Mrs Martin had been divorced soon after their separation and had obtained an order from the divorce court costing a £50 court fee confirming the terms of their settlement, then almost certainly that would have made clear whether or not either of them could have made a claim on the estate of the other when the first one of them died.   In many cases that right is cancelled so there would have been no chance for Mrs Martin to have even made a claim for Mr Martin’s half share of the house whether or not he had made a will, and if they were divorced she would not have got his half under the Intestacy rules if he hadn’t made a will.

All too frequently couples separate and divide assets such as the house and their savings, but they do not think about the pensions, because either they are too complicated or they’re too emotive a subject.   However, sorting out who gets what out of the pensions years after the separation is far more difficult than sorting it out straight after the separation so this is another reason why it is important not to put off dealing with all the financial affairs and wrapping everything up with a divorce and consent order which puts the Court’s seal on the parties settlement.

If you want further advice about any aspects of this case or financial issues arising on divorce then please contact Simon Mortimer or any member of the family team here at Burnetts on 01228 552222 or email family@burnetts.co.uk or go to our website at http://www.burnetts.co.uk.

About the author

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Simon Mortimer

Simon is a Partner and leads the Family Law team at Burnetts.

Published: Wednesday 2nd March 2016
Categorised: Divorce and separation, Family Law

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