I’m marrying a man with less money than me. How can I protect my assets?’
Question: I’m a 52-year-old woman and I’ve been going out with a lovely man for four years. We’ve been living together in my home for the last two years and he’s just proposed to me. He left school early, is not very ambitious and earns about four times less than I do. This doesn’t bother me as I have a senior corporate job, my own home and a decent pension pot.
But it took me a long time to recover financially from my divorce from my first husband 14 years ago. I left our shared home after he openly cheated on me multiple times.
As I earned a lot more than him and was able to move into our holiday home, he was given our family home and a chunk of my savings in the divorce.
I have a lot of trust in my current partner but I’m worried I could lose my home again if this marriage doesn’t work out.
I understand there’s no such thing as a pre-nuptial agreement in Ireland, so how can I protect myself and my property should the worst happen?
Rosie, Co Clare
Answer: The manner in which you hold your assets is important. If you retain your home and assets in your sole name, you retain control over said assets. If the assets are transferred into joint names, then your position is altered.
If you have a long engagement, then one option may be to enter into a cohabitation agreement, as provided for by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
However, in the event of a breakup, the court can change or ignore such an agreement if its enforceability would cause serious injustice. Under the Act, a qualified cohabitant is a member of a couple living together for two years if there is a dependent child, or five years in any other case.
A pre-nuptial agreement has no basis in law in Ireland. As a result, pre-nuptial agreements are not binding. But such an agreement may serve as a guide for a court in the event of separation or divorce.
For a pre-nuptial agreement to carry any weight, you would both need independent legal advice. The agreement should recite that your assets — to include your home, pension pot and so on — have been “brought to the table” by you so that these are not an asset of the relationship per se.
Both agreements can provide for what would happen on death. You could both sign a waiver of rights as Section 194 of the Act may be taken into account.
When you marry, from a succession point of view, you will each have what is called a “legal right share” to the other’s estate.
If you do not have children, your husband would be entitled to a half share of your estate. You could both renounce each other’s legal right under Section 113 of the Succession Act.
Bear in mind that if the house or any other asset is transferred into joint names and held as joint tenants, then it would automatically pass to your husband on your passing.
Source : Elaine Byrne, Solicitor – Irish Independent