Is a postnuptial agreement part of your family business succession plan?

The 2020s have been called ‘The Great Wealth Transfer,’ as £1 trillion of wealth built up by the ‘baby boomers’ is expected to pass to the next generation. Much of this wealth will pass via a family business, and parents who wish to retire are having to make strategic decisions about succession planning. A particular concern for many is the potential impact on a family business of a divorce or the dissolution of a civil partnership, and the consequent negotiations of a financial settlement. ‘Business difficulties can arise for any number of reasons, and directors usually have business strategies, budgets and contingency plans,’ says Samantha Sinclair, Head of Family with Ware & Kay incorporating Pearsons & Ward Solicitors in York, Wetherby & Malton. ‘However, few businesses have a plan for what would happen if an…

Arbitration in family law – could this help us?

When trying to resolve matters relating to matrimonial finances, or deciding on certain child arrangements after a relationship breakdown, one alternative to court, for a privately funded family law case is arbitration. ‘Arbitration involves the appointment of an independent arbitrator who will be presented with the facts of the case from each side. After evaluating all the information, they make a decision which is akin to having a court judgment without the protracted process of litigation,’ explains, Samantha Sinclair, Head of Family with Ware & Kay incorporating Peasons & Ward Solicitors. ‘Arbitration can remove delay and bring swift closure, as long as you are willing to accept the arbitrator’s decision as it is difficult to challenge.’ Below, Samantha explores some of the things to consider when deciding to opt for arbitration. The benefits of arbitration…

How do we deal with our mortgage during a divorce?  

With interest rates and the cost-of-living crisis in the headlines on a daily basis, mortgage affordability is a key concern for many homeowners, not least for couples who are separating and wondering how this will affect their mortgage arrangements. Most divorcing couples will have a mortgage on their family home, and the family home is likely to be their largest asset. The mortgage may be in joint names, or it could be in one person’s sole name. Either way, the house will be considered a matrimonial asset if it is the family home, and it will need to be dealt with as part of the financial settlement. Whether a mortgage is affected by divorce or the dissolution of a civil partnership, and the extent to which it is affected, will depend on the terms of the…

Contact arrangements for children – indirect Contact

Along with the welfare issues to be considered when thinking how to meet your child’s needs, parents who are separating will need to decide on practical issues around the contact arrangements with the other Parent. There are a number of different types of Child arrangements, which vary in terms of the quality of the time spent which occurs. In this article we will focus on the different types of indirect contact and how it might work. ‘Indirect contact means the amount of time a parent has with a child that is not face to face,’ explains a Family Lawyer with Ware & Kay in York. ‘In an increasingly digital age this can now take many formats.’   Why should there be indirect contact? There are a number of different reasons: It is the safest option…

Managing child contact arrangements after a divorce on the farm

  Resolving child contact arrangements after divorce is often tricky, but for a farming family where the children may have been actively involved in the business, it can be particularly problematic. When a couple who farm get divorced, one spouse will usually leave the family farm and so it is important to try to reach agreement at the earliest stage about who will get to spend time with any children and when. If the children work on the farm, this may need to be taken into consideration when the child contact arrangements are being negotiated as they may (or may not) want to be involved during busy periods such as lambing or harvest seasons. While agreeing co-parenting arrangements can be challenging for farming families – not least because of the demanding working patterns – there are…

Can a non-molestation order prevent someone bothering me?

  Domestic abuse can impact men and women, of any age or race and is seen across all parts of society.  Unfortunately, statistics from the Office for National Statistics reveal that domestic abuse is on the increase, with cases having risen by six per cent since 2020, and it now represents an astonishing 18 per cent of all reported crime in England and Wales.  These statistics will bring little comfort to those in the midst of an abusive relationship, but a non-molestation order can provide a great comfort to someone who has bravely taken the step to leave.  What is a non-molestation order? A non-molestation order is a type of injunction.  It is an order from the court that forbids a person you know from threatening or using violence against you.  It bans them from pestering…

Preventing the dissipation of assets in divorce

  Divorce can often stir up feelings of mistrust between former spouses, especially when it comes to considering the financial division of assets.  Sadly, it is all too common that one spouse will try and dissipate matrimonial assets, either prior to a separation or during divorce proceedings, in the hope of minimising the amount of money that they have to provide to their former spouse. What is dissipation in the contest of a divorce? Dissipation of assets in divorce means that one spouse has sold, transferred, or otherwise disposed of property that should be taken into account when considering the division of matrimonial assets to arrive at a fair financial settlement.  Some of the common ways in which a spouse may try to dissipate assets include: transferring assets at an undervalue or for no value…

Crypto assets and a divorce settlement

  According to a report by Forbes Magazine in September 2022 there are now more than 20,000 crypto currencies worth a collective $982 billion, and NFT artworks (non-fungible tokens) are changing hands for huge sums. One of the ways in which these assets differ from the other assets which are considered for sharing in a divorce settlement, is that they are much easier to hide. What are crypto assets? They are digital assets commonly known as crypto currencies.  ‘Crypto’ means hidden, referring to the secure digital way data is held on who owns the asset, and ‘currencies’ reflects that this is a type of digital money.  Some commonly known crypto assets include Bitcoin, Binance, Ethereum and Tether though there are thousands more, with new ones being added regularly. Crypto assets differ from traditional assets in that…

Is my prenuptial agreement binding?

  If you are facing difficulties in your marriage and you have a prenuptial agreement, you may be curious to know just how binding the terms will be, especially if your life is now rather different to the one you envisaged when you planned to get married. It is important that anyone contemplating a divorce or who has concerns about an agreement has a lawyer examine their prenuptial agreement. Will the family court uphold my prenuptial agreement? In England and Wales there is no law specifying that a prenuptial agreement is legally binding.  However, after a landmark decision in 2010 the courts decided that they would give weight to prenuptial agreements under certain circumstances when they are determining the outcome of the financial division of assets between spouses during divorce.  This provides some reassurance that, if…

Agreeing access arrangements for children – welfare considerations

  A relationship breakdown often means a dramatic change in life for all involved and when parents live apart, arrangements need to be agreed about how and when children will see each of their parents.  If a couple can agree arrangements between themselves, it will be beneficial for all concerned and it will have a positive impact on the child’s wellbeing. That arrangement can be formalised by a solicitor to ensure there are fewer disagreements moving forward.  However sometimes relations are not amicable and if one parent is being prevented from spending time with their child, they may need to apply for a child arrangements order to secure their right to access. The Children Act 1989 states that the welfare of the child must be the paramount consideration.  When it comes to welfare, the Act stipulates…