Kerry Graham Partner and Head of Family and Matrimonial
The legal implications of “popping the question”
With romance in the air, Valentine’s Day is a popular time for “popping the question”. It is an exciting time filled with celebrations and if this is you, congratulations on your engagement!
This is a very exciting time for couples, however, there are many that will not give any consideration to the legal implications of getting engaged. In fact, many think that there are not any implications until you have “tied the knot”. This is not the case.
However, not everyone who gets engaged will make it down the aisle. So, what happens if either you or your fiancée decide to part ways and end the engagement? Who gets the engagement ring?
The engagement ring: to return or not to return?
When engaged couples separate, questions may arise as to whom the ring belongs and whether it should be returned to the giver.
The Law Reform (Miscellaneous Provisions) Act 1970 states that:-
“The gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.”
Under this Act, an engagement ring is presumed to be an absolute gift. This means that if the relationship has come to an end, the recipient of the ring does not have to return it. However, if there was an agreement that the ring should be returned should the relationship come to an end, then the ring may likely have to be returned. The circumstances at the time are highly relevant. So, before getting down on one knee, consider the consequences that it might not be ‘meant to be’!
Should you get a Prenuptial Agreement?
Once you are past the engagement stage and set a date, it is very important to consider protecting your assets before you walk down the aisle and make your vows. Prenuptial Agreements are a mechanism for achieving this. They provide an element of certainty and valuable evidence of your intentions at the time of marriage. They can be used if one half of the couple has generated a significant amount of assets prior to the marriage. Furthermore, they can be used to ring-fence and protect those assets. These assets can include wealth inherited wealth, income from a business that you have built outside of the relationship, or properties both in the UK and overseas.
Whilst a Prenuptial Agreement is not automatically binding upon a judge in England and Wales, previous cases surrounding prenuptial agreements confirm that those that are entered into freely and with full understanding of the implications should be upheld, unless it would be not fair to uphold the agreement.
The earlier that you consider a Prenuptial Agreement, the better. It is not the most romantic thing, but it is better to discuss it as soon as you are considering getting married and the Law Commission Guidelines states that prenuptial agreements should be signed off at least two months before the marriage.
Civil partnerships: an alternative to marriage
For those who want to formalise their relationship but don’t necessarily like the religious connotations and traditions associated with conventional marriage, there is another option. There has been an exciting recent development in family law which creates, for the very first time, an opportunity for all couples to have the right to enter into a civil partnership. This demonstrates how far the legal system has evolved in adapting to meet the changing needs and requirements of society.
Aside from the benefits of celebrating a relationship, civil partnerships also attract a number of financial benefits and protections relating to inheritance tax exemptions, income tax allowances, and inheritance prospects.
It is anticipated that civil partnerships will be seen as a popular alternative for many couples. Regardless of whether you decide to marry or enter into a civil partnership, it is important to understand the legal implications of both options so that you can make the right decision for you and your significant other.
It will be interesting to see how civil partnerships are interpreted in practice. Will one say “this is my wife” or “this is my partner”? Only time will tell.
To marry or not to marry: that is the question
Despite being the end of Marriage Week, do you have to get married at all in the 21st century? Why not just do nothing? You can do, but you need to protect yourself legally with a Cohabitee Agreement, Will etc. There are less constraints in not getting married but more red tape in the event of a death.
Is there such a thing as the sanctity of marriage? Sanctity is defined as being the state of being holy, and holy means being sacred, pure and morally blameless - but what does sanctity of marriage really mean today? Is the word “marriage” now defunct in its biblical context?
Today, one might say the definition of the word is evolved and all encompassing; but the starting point in law still states that marriage involves the meeting of minds and the mutual assent required to form a binding contract.
We see what happens when relationships go wrong on a daily basis. One might say therefore, in the case of a marriage it is important to get it right from the outset and enter into it for the right reasons, keeping it moving in the right direction. It takes time and effort. Putting the legal foundations in place to assist in making it work is imperative to keep it moving in the right direction, however unromantic this appears.
We have come full circle in this article, from the starting point of the proposal, onto pre-nuptial agreements, followed by marriage and civil partnerships, and finally, the potential for a not-so happy ever after. Get it wrong, you could spend tens of thousands more on legal fees.