21 JUNE 2014 FAMI LY VALUE S 27 FAMILY LAW Protecting children’s money on divorce and remarriage
With 42% of marriages expected to end in divorce and a high proportion of parents remarrying, it’s important to safeguard children’s financial future. Matthew Duncan, head of private client at Kingsley Napley LLP, offers some top tips for parents
1. Separation: On separation, consider making a new will benefitting your children, in case you die while still legally married. Your spouse/civil partner is probably the main beneficiary of your current will or if you don’t have a will, they’ll inherit at least part of your estate under the intestacy rules, even if you’re no longer together. 2. Divorce: Divorce doesn’t automatically revoke a will, but mention of your former spouse may be ‘erased’. You should review your will, particularly as your financial circumstances have changed following divorce. 3. Guardians: Your will can also be used to appoint guardians for your children, should both parents die. Ideally, it’s best if both parents can agree to appoint the same guardian to prevent arguments. If none is appointed, the children’s future will be decided by the courts. 4. Giving: You can plan for your children’s future by gifting to them during your lifetime. Tis removes assets from your estate so they are less vulnerable to attack on divorce and may reduce inheritance tax. 5. Savings: Children pay income tax on savings above their personal allowance. However, tax- free options are available such as Junior ISAs and certain National Savings & Investments products. Take care with taxable savings accounts. If these earn more than £100 per year on money from a parent, this income is taxed at the parent’s rate, which is often higher. 6. Cohabiting: When meeting someone new, obtain legal advice before you move in. ‘Common law marriage’ is a myth — if you
move into their home, your rights are limited. Conversely, if they move in with you, they may acquire an interest in your and your children’s home that you didn’t intend. 7. Engagement: To protect your wealth for your children’s future, consider a prenuptial agreement. Tese are not (yet) legally binding in the UK but, if drawn up properly, judges are increasingly likely to take them into account when dividing assets on divorce. 8. Remarriage: Marriage generally revokes any existing will, so you should make a new one. You can use your will to provide for your new spouse while protecting your children’s future by, for example, giving your spouse a ‘life interest’. Tey receive any income and can live in the home but, on their death, the capital passes to your children.
Family Values recommends: • Kingsley Napley LLP: A leading London-based law firm. Its lawyers are renowned for their integrity and expertise in dealing with complex and often high-profile and international cases involving wealth planning, tax, family and immigration law, among other specialisms. Te company’s clients typically include professionals, international families, investors and other private clients, although Kingsley Napley also undertakes owner-managed business, regulatory and public company advisory work.
www.kingsleynapley.co.uk • Withersworldwide: Withers’ Family Law team is one of the most well-respected and established teams in the UK. Despite its long standing in the legal market, the team has stayed at the forefront in developing trends — for instance, boasting some of the leading practitioners in arbitration and collaborative law. Te team is able to provide expert advice on a full range of family law services, from high-stake court litigation to disputes involving children, advice on pre- and post-nuptials, and complex areas such as forum
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shopping and trusts and divorce. Recent feedback on the team, published in Chambers & Partners, reported that, “Teir knowledge is completely in-depth and impeccable. What I liked most is that it is the complete Rolls-Royce service.”
www.withersworldwide.com • Blaser Mills: After an excellent financial year 2013/14, Blaser Mills, one of the South East’s leading regional law firms, continues to grow from strength to strength. A multipractice law firm, Blaser Mills has, in particular, seen
an increase in work for the Family, Private Client, Commercial and Crime teams through acquisition of some notable clients across all sectors. Blaser Mills also recently appointed an experienced business development manager, Hiren Gandhi, to facilitate the ongoing growth of the firm. Blaser Mills’ lawyers are known for providing clear advice to clients, offering an innovative approach to solving often complex legal issues, across a comprehensive portfolio of legal disciplines.
www.blasermills.co.uk
Taking children abroad – for holiday and forever
As the number of children born in the UK to foreign parents is soaring, with one in three nationally and seven in 10 in London being born to at least one foreign parent, it’s no surprise that difficulties increasingly arise when family relationships break down. Divorcing couples involving foreign nationals frequently
are faced with making important
decisions about which country to divorce in, the financial support being sought and arrangements for the care of the children. In some cases, the UK immigration status of one party and the child(ren) may also be affected by the separation. One of the most emotionally challenging
situations arises when one parent wishes to relocate with their child(ren) to their home country following the divorce or separation. Te reason for this might be to return to a family support network, to start a family with a new partner or to work. Tese situations are never straightforward and a desire to move can involve significant disruption to a child’s relationship with one or both parents.
Traps and pitfalls Many parents are unaware that they are not
entitled to take their child out of the country, even for a holiday, without permission from the other parent. Even in situations where there’s an order confirming who a child is to live with, that parent can only take the child abroad for up to one month without the other parent’s consent (and in most cases seeking consent of the other parent is still encouraged and considered good practice). A parent who removes a child from the UK without
permission from the other parent is effectively ‘abducting’ the child, regardless of whether the child usually lives with the ‘abductor’. Family proceedings and in some cases criminal proceedings may be brought in these situations, both in the UK and the country the child has been taken to, in order to secure a swift return of the child.
Seeking the best outcome Te parent wishing to relocate with their
child(ren) needs to apply to court for permission if the other parent does not agree. Tese ‘leave to remove’/‘relocation’
cases can be incredibly
upsetting as compromises are often impossible. Relocating the child inevitably separates the child, sometimes by a great distance, from one of his/ her parents. Either parent could be devastated by the outcome; for example if the court refuses permission to the parent whose plans to move back home have been thwarted or for the ‘left behind’ parent facing a huge reduction of time spent with his/her child.
Legal advice If parents disagree and a court application is
needed, it’s vital to take legal advice at the earliest opportunity as employing the correct strategy in these cases can have a crucial impact on the success of the application.
Te parent wishing to relocate must demonstrate (with evidence) that they have given proper thought to the suitability of the country to which they want to relocate, including: • where they are going to live; • who will help look after the child; • how they will manage financially; and • the school the child will attend.
Most importantly, the moving parent will also need to make suitable proposals in respect of contact between the child and the ‘left behind’ parent. During court proceedings, any unnecessary criticism of the ‘left behind’ parent should be avoided and, instead, the parent applying to relocate with the child needs to demonstrate their commitment to encouraging and protecting the relationship between the child and the parent they leave behind.
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Regardless of the outcome, the child’s well-being and continued contact with both parents will be the court’s priority.
Contact Charlotte Bradley, Head of Family, Kingsley Napley LLP. E:
cbradley@kingsleynapley.co.uk
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