THEGAYUK

Tag: Legal Advice For Marriages

  • Coming out as gay, like Phillip Schofield after years of marriage, could lead to a legal nightmare, so what happens next?

    Coming out as gay, like Phillip Schofield after years of marriage, could lead to a legal nightmare, so what happens next?

    Free-Photos / Pixabay

    After years of marriage, coming out as gay, when you’re married and with children could have legal repercussions. We asked Stephanie Kyriacou and Matt Parr, associates at law firm Shakespeare Martineau, to outline what happens next.

    Coming out as gay, what are the next steps?

    MabelAmber / Pixabay

    At the start of February, television personality Phillip Schofield revealed that he is gay. His announcement has been hailed as a powerful move that may have given many others in a similar position the courage to come out. However, it also works as a reminder that there are no rules when it comes to navigating the complexities that this emotional time can throw up, especially in terms of family and finances.

    Coming out can bring a host of challenges, and in the midst of an already intense period of time, many people may not immediately consider the wider implications. Particularly for those who, like Phillip Schofield, choose to come out later in their lives, tricky conversations around finances and estate planning may arise sooner than expected. However, whilst this may seem a difficult topic to discuss communicating with family and friends can reduce the risk of family conflict and ensure that loved ones are safeguarded for the future.

    Stephanie Kyriacou and Matt Parr, associates at law firm Shakespeare Martineau, detail the main steps to consider when coming out in later life.

    Get your ducks in a row

    Coming out can be daunting enough, but if you’re unsure of how your family and friends will react, the process can feel quite overwhelming. Before telling a partner or family members, it is sensible to consider your current financial and legal arrangements, including your existing will and powers of attorney. Equally, you may wish to speak to an adviser ahead of time and discuss the next steps if things were to rapidly go downhill, this would then allow changes to quickly be made to safeguard your interests.  

    Don’t make any rash decisions

    gracinistudios / Pixabay

    Your family might be shocked or find it difficult to accept your news at first, though it is important to remember that their first reaction isn’t necessarily how they will always feel – they may just need some time to process what you’ve told them. With this in mind, it is important to not make any rash decisions. There may be discussions to be had from both a financial and a personal perspective in terms of where you go from here. Every couple is unique, some may feel that it is best to separate and file for divorce, while others may be open to the idea of staying together and living as companions.

    Considering divorce

    Embed from Getty Images

    Under UK law, adultery can only occur between members of the opposite sex. Therefore, should either partner decide that they do not wish to stay in the marriage and on the basis they had not been separated for 2 years or more, they would need to issue a divorce application on the grounds of their spouse’s unreasonable behaviour. Under these circumstances, the person making the application must show that the other party has behaved in such a way that they cannot reasonably be expected to live with him or her, and that the marriage has irretrievably broken down.

    In these situations, it is advisable to take specialist advice from an accredited family lawyer, who can promote a constructive and non-confrontational approach, often resulting in a far better outcome for all involved. Resolution is a useful starting point to find local accredited experts.

    For those divorcing without children, the process can be very simple, focusing mostly on the division of assets such as money, property and investments. However, a divorce involving children can be far more complicated and often requires arrangements for maintenance payments, as well as provisions to be made to safeguard the children’s futures.

    Looking to the future

    get some breathing, man alone
    CREDIT: Natasha_from_Russia-bigstock

    Should the point come where a new relationship is formed, it may be important to ensure that children from the first marriage are provided for.

    Financial arrangements which can protect assets owned prior to living with a new partner can be set out in a cohabitation agreement, therefore ensuring transparency around who owns what. Similarly, should you decide to remarry, a prenuptial agreement is advisable as it will allow you to outline the assets brought into the marriage as well as those that are to be kept separate.  

    By securing the right expert advice, keeping lines of communication open and allowing time for your loved ones to accept your news, coming out can be the start of an exciting new chapter.

  • Everything you need to know about wills and inheritance if you’re LGBT+

    Everything you need to know about wills and inheritance if you’re LGBT+

    This month legal expert, Matt Parr tells us everything we need to know about wills and inheritance – especially if you’re lesbian, gay, bisexual or transgender.

    geralt / Pixabay

    Wills and inheritance issues in the gay community

    Members of the gay community face many of the same dilemmas as opposite-sex couples when it comes to estate planning, wills and their potential exposure to inheritance tax.

    According to figures recently issued by the Office of National Statistics, there were 190,000 same-sex families in the UK in 2017 and the majority of those were co-habiting couples as opposed to being married or in a civil partnership. In this situation, those couples or family units face the same issues as co-habitants of the opposite sex. Therefore, there are some important points that they should be aware of.

    ‘Common law’ civil partners?

    Cake, Gay Marriage, gay wedding
    CREDIT: © ivonnewierink Depositphotos

    Co-habiting partners do no automatically inherit assets which were held in their partner’s sole name. In the same way that there is no such thing as “common law husband/wife” there is no such thing as a “common law civil partner”. With this in mind, if you aren’t married or in a civil partnership it is extremely important that wills are prepared to ensure that the surviving partner is adequately provided for after your death.

    This can prevent family feuds, confusion over your wishes and costly legal action.

    If you’re not married or in a civil partnership and you have no children of your own, then the law dictates that your parents will inherit your estate. Unfortunately, rifts are not uncommon amongst families of the gay community and there are many instances of parents being unwilling to accept their son’s same-sex partner into the family.

    The thought of a parent inheriting a share in a property you own as tenants in common with your partner may fill you with dread – is there any possibility your parents would wish to co-own a property with your partner? If the answer is no, your parents could insist on selling the property, forcing your partner to move. Preparing wills would prevent this situation from arising. When property is owned as joint tenants as opposed to tenants in common your partner will inherit your interest in the property regardless of whether you have a will or not.

    Inheritance Tax

    stevepb / Pixabay

    There is no form of inheritance tax relief for co-habiting couples of any sexuality. Consequently, only the first £325,000 of your estate, otherwise known as your Nil Rate Band (NRB) will be tax free – the balance over and above this will be taxed at a rate of 40 per cent. Therefore, even if you did decide to leave your entire estate to your co-habiting partner, they could be left with a hefty inheritance tax liability. Married couples and those in civil partnerships can leave their estates to each other and benefit from a total exemption for inheritance tax purposes, meaning on first death at least, there will be no inheritance tax to pay.

    Unlike married couples and those in civil partnerships, cohabiting partners are unable to transfer their unused NRBs between them. Consequently, many gay couples make use of trusts in their wills to try and avoid an inheritance tax liability by giving them access to the funds without necessarily increasing their own inheritance tax exposure. The use of trusts to control the way funds are inherited, by whom and when, is particularly helpful when one or both of you have children from a previous relationship to whom you would wish to leave your estate, without compromising your surviving partner’s rights to live in your joint property after you have died. Advice should be sought as to your options in this scenario in order to ensure the trust is drafted correctly and in accordance with your wishes.

    Gay couples who have taken the plunge and married or entered into a civil partnership can benefit from the same legal rights as opposite-sex couples, including the right to receive a statutory legacy together with a certain proportion of the balance of their partner’s estate if their partner dies without making a will (intestate). Ideally, however, the intestacy rules should not be relied on and my advice would always be to prepare a will specifying how you wish for your estate to be distributed.

    A very recent Supreme Court ruling has paved the way for opposite-sex couples to enter into civil partnerships which will ensure absolute equality in the eyes of the law between “straight couples” and gay couples. Previously only same-sex couples could enter into civil partnerships.

    Polyamorous relationships

    ©-photography33-Depositphotos

    Members of the gay community enter into polyamorous relationships in the same way as those in the heterosexual community. Whilst still not necessarily subject to a wider understanding by the public, it is impossible to deny that these forms of relationships exist and therefore it is right to encourage those who enter into them to seek advice on their rights and obligations to one another.

    According to UK law, it is illegal to enter into more than one marriage or civil partnership. How members of a polyamorous relationship choose to protect each other’s interests is, therefore, more difficult – but not insurmountable. Again, the use of trusts in wills can prove extremely helpful in ensuring a degree of flexibility and afford a level of protection for the assets within the trusts. This is often required when three or more people wish to co-habit or enter into a relationship with each other.

    Seeking advice about your options in this regard can be tricky. The fear of judgment and lack of understanding can deter you from gaining an insight into your options, but there are advisers equipped with the knowledge to help and offer a non-judgmental ear in complete confidence.

    Transgender dimension

    Transgender Flag

    Currently, under UK law it is not possible to self-define your gender without a formal diagnosis of Gender Dysphoria and a successful application to a gender recognition panel for a Gender Recognition Certificate (GRC). This process can be lengthy and painfully intrusive. But once you have a GRC, what are the legal implications for estate planning and inheritance purposes?

    It is important to consider the fact that wills prepared post-4 April 2005 which claim to gift assets to, for instance, “my sons” or “my nephews”, will exclude an individual who has obtained a GRC and who now identify as female. The beneficiary would need to apply to court to alter the disposition in order to rectify a failed gift because of a change in their gender means they no longer align the gender stated in the will. This application could become expensive and lengthy if other beneficiaries take objection to the change being made if this will adversely impact their own share of the estate.

    Any will prepared before 4 April 2005 which purports to gift assets in this way does, however, continue to be effective despite a GRC having been issued to the beneficiary.

    Members of the transgender community should be aware of the fact that family members may need to amend their own wills to take into account this change in the law and to avoid any uncertainty around the wording of such a gift.

    With the growing number of gay couples living together, marrying, entering into civil partnerships and starting, fostering and adopting families of all different sorts, the gay community is just beginning to grapple with the same issues that heterosexuals have faced for centuries. Yet, some of these issues are easily overcome with the right advice.

    Ultimately, the worst thing you can do is bury your head in the sand when it comes to discussing what can be tricky and sensitive matters with your family and planning ahead, where possible, is always the best course of action.

  • What’s the difference between marriage and civil partnerships?

    Are there differences between civil partnerships and marriage? Andrew Smith, Associate Solicitor for Blacks Solicitors’ Family Law team, answers the question.

    Is there difference between Civil Partnerships and marriage?

    What are the legal differences between a civil partnership and a marriage?

    “There are very few ‘legal’ differences between a civil partnership and a same-sex marriage. Civil partners cannot refer to themselves as ‘married’ and it is a different ceremony. On a certificate of civil partnership, both parents are named rather than just the father on a marriage certificate; but there is legally little difference between the two.”

    “The main differences are similar to those between a religious marriage and a civil ceremony undertaken by heterosexual couples; in regard to the formation, the ceremony, the administrative process and the certificates.

    “Somewhat controversially, one of the main differences is that civil partners are unable to cite the specific act of Adultery as the main reason for why the civil partnership has broken down. This is because the definition of adultery is sexual intercourse with someone of the opposite sex outside marriage. Instead, civil partners have to use ‘unfaithfulness’ as one of a number of examples of Unreasonable Behaviour.”

    What about divorce? Can civil partnered couples get divorced?

    What about divorce? Can civil partnered couples get divorced?

    “A married couple will have a ‘divorce’ whilst civil partners will have a ‘dissolution’ if they choose to separate. Therefore the answer is technically yes as although the terminology is different, it does mean the same thing in principle.”

    What about pension rights, are they the same between marriage and civil partnerships?

    “Up until very recently, this had been a grey area for those who retired prior to when the act was introduced.

    “The Walker v Innospec [2017] case which recently made the headlines challenged this and saw the Supreme Court unanimously allow Mr Walker’s appeal for his employer to pay his pension to his spouse in the event of his death, despite his service predating December 2005.

    “This fantastic result will pave the way for all same-sex couples in a similar situation, who are either married or in a civil partnership, to be able to leave their pension to their spouse.”

    If you have a LGBT legal query you would like to discuss with Andrew, please email him on AJSmith@LawBlacks.com or visit the website for more information: www.lawblacks.com

  • Is there a difference between Civil Partnerships and marriage?

    Is there a difference between being a civil partner and a married person? Andrew Smith, Associate Solicitor for Blacks Solicitors’ Family Law team, specialises in LGBT legal work and is a huge supporter of the community answers the questions.

    Is there difference between Civil Partnerships and marriage?

    What are the legal differences between a civil partnership and a marriage?

    “There are very few ‘legal’ differences between a civil partnership and a same sex marriage. Civil partners cannot refer to themselves as ‘married’ and it is a different ceremony. On a certificate of civil partnership, both parents are named rather than just the father on a marriage certificate; but there is legally little difference between the two.”

    “The main differences are similar to those between a religious marriage and a civil ceremony undertaken by heterosexual couples; in regard to the formation, the ceremony, the administrative process and the certificates.

    “Somewhat controversially, one of the main differences is that civil partners are unable to cite the specific act of Adultery as the main reason for why the civil partnership has broken down. This is because the definition of adultery is sexual intercourse with someone of the opposite sex outside marriage. Instead, civil partners have to use ‘unfaithfulness’ as one of a number of examples of Unreasonable Behaviour.”

    What about divorce? Can civil partnered couples get divorced?

    What about divorce? Can civil partnered couples get divorced?

    “A married couple will have a ‘divorce’ whilst civil partners will have a ‘dissolution’ if they choose to separate. Therefore the answer is technically yes as although the terminology is different, it does mean the same thing in principle.”

    What about pension rights, are they the same between marriage and civil partnerships?

    “Up until very recently this had been a grey area for those who retired prior to when the act was introduced.

    “The Walker v Innospec [2017] case which recently made the headlines challenged this and saw the Supreme Court unanimously allow Mr Walker’s appeal for his employer to pay his pension to his spouse in the event of his death, despite his service predating December 2005.

    “This fantastic result will pave the way for all same sex couples in a similar situation, who are either married or in a civil partnership, to be able to leave their pension to their spouse.”

    If you have a LGBT legal query you would like to discuss with Andrew, please email him on AJSmith@LawBlacks.com or visit the website for more information: www.lawblacks.com

  • LEGAL | Should I get a prenup?

    Hurrah! From next summer, lesbian, gay, bisexual and trans people can get married in the same way our straight families and friends have done over the centuries, even in participating churches (the Quakers have been particularly supportive as have the Liberal Synagogues).

    As a family lawyer with a specialism in separating and divorcing couples, both gay and straight, most of my clients are struggling to come to terms with the end of a relationship. While some feel relief at the prospect of moving on with their life, nearly all of them are sad that things didn’t work out as they had hoped. LGBT clients that want to marry are now considering pre-marital agreements. Whilst working on Civil Partnerships, I have encountered similar questions from almost every client.

    Why do it?
    Pre-marital agreements are an opportunity for the parties to agree how they would like to arrange their finances in the event things do not work out as they plan. Despite obviously being forced to consider a possible divorce this can be a positive experience. You see, the alternative is an adversarial procedure, set up in 1973, whereby lawyers reduce each party to a number, a net worth, and then a judge decides on how their finances should be fairly divided considering a variety of factors. Coming to an agreement about fairness between yourselves ought to reduce uncertainty which, in my view, is always good.

    How should I raise it?
    Sometime both parties immediately identify the agreement as a necessary thing. For most, however, it is usually the partner with the most assets or highest income that raises it. This can be tricky. I have seen these discussions end relationships before they begin so I strongly urge any client who is in a stronger financial position, than their future husband/wife, to offer to pay all the legal fees from the outset.

    Never use the words “protect assets” or “ringfence” at this stage, rather say “certainty” or “clarity” and always mention that agreeing now will prevent having to pay out to lawyers in the future. Depending on your family arrangements, you will also want to mention parental pressure (if there is any) regarding future inheritance and/or ensuring security for any of your children.

    How much should I pay?
    This can range from £195 DIY agreements to £6,000 plus depending mainly on the type of solicitor(s) you instruct. It is universally accepted that both parties should take independent advice in order for the agreement to be taken seriously by the court. Normally, one solicitor drafts the agreement and another provides advice and negotiates amendments.

    If you like the comforts of beautiful city offices and delicious biscuits you will pay for it.

    Based on my experience, even people of high net worth should not be paying more than £2,500 for the drafting and £1,000 for the reviewing. If both parties are English and all of your assets are in the UK I would expect the cost of a properly agreement to be approximately £1,500 and a review of approximately £750.

    If you are considering the DIY option, please do not. Ask yourself whether or not you would attempt DIY dentistry? Solicitors have trained as long as dentists and, if you get the right one, demonstrate excellent value for money. DIY agreements can offer false hope and lead to serious unintended consequences.

    What are the pitfalls I should avoid?
    Do not instruct a solicitor that gives a vague price, saying something like ‘I cannot predict how much it will cost because I do not know how complex your matter will be’. Tell them that if they want the work, they should take the time to complete an assessment of your matter at no cost to you and then provide an accurate quotation. At the very least, set a costs cap so that you can track how much you will have to pay.

    Pre-marital agreements are new to England and Wales, pre-2003 they were completely useless and since 2007 the courts have increased their importance, often describing them as magnetic. However, they are not strictly binding on the court. This means that a judge will still look into the circumstances of the marriage and take their own view of what a fair division of assets should be.

    In this developing area of law it is generally accepted that for marriages which have lasted more than a couple of years, an agreement that does not provide for the housing needs of both parties and/or leaves either of them with no income would be ignored in the court. It is a mistake to take the time to draft an agreement that does not meet this bare minimum because you will have risked enduring the difficult process for nothing.

    If you are planning on getting married next summer, congratulations! Amongst your booking of venues and planning what alcohol to serve, a premarital agreement can take up to six weeks to complete and it should be signed at least 21 days before the ceremony. These are only guidelines but I am sure you get the picture, if it is signed the day before, or the day of, the wedding it looks like it was rushed and signed under pressure.

    Conceptually, I compare these agreements with Wills (which you should also complete!) in that they are tricky but important bits of lifetime housekeeping. Done well, both agreements allow clients to take control of their life and make their own decisions.

    If you would like to speak to Randal Buckley about this or any other family law or Wills matter, please contact him by email at sbedford@thelawhouse.com or call 020 8956 2655. He blogs at: www.thelawhouse.com/author/randal-buckley and you can also follow him on Twitter: @Randal_Buckley.