Protecting your assets.

[JKramer]

Anyone knows what's the best way to protect your assets?
I am currently unmarried and not planning to have children but I have a partner.
We are planning to get a property together for which I am contributing the bulk.

I have spoken with various people, it has been suggested that we buy as tennants in common, have a declaration of trust deed drawn up and a will to stipulate these will not be revoked upon us marrying each other.

However, I was also told if the trust deed only details the split of the property and is not in lets say your intended beneficiary's name, in the event of you marrying and later divorcing, the trust deed may bear little weight in court as they would take in to consideration length of marriage and what's just to each partner. A pre nup is also not legally binding.

So how best to protect your assets?

You have had some good advice. If you marry then it is correct to say that on divorce a trust deed stipulating, say, a 70:30 split in the house may be departed from by a court. This would depend on whether there were any children of the marriage, and other factors. In general terms, what you own prior to marriage is not in the "marital pot" for division in divorce but even that position is not altogether clear cut. Assets accrued during the marriage are definitely in the pot for division.

Do bear in mind also that even if you do not marry, if you have kids then that could affect what happens to the house if you split. The paramount concern of the court will be to ensure a roof over the kids' heads during their minority. If, say, you contributed 90% of the equity but your DP was the primary carer, this could result in him remaining in the house with the kids and you getting a charge over the house to protect your share.

These are all quite general hypothetical situations though and as long as you are aware of the considerations (which it sounds as though you are), you can weigh up what is best. If you want to be 100% sure of who owns what, buy as tenants in commmon, get a declaration of trust, don't get married and don't have kids!

Agree with Mendi.

Would putting your share of the property in a trust in your benficiary?s name be the solution?
(I already know about giving OH life interest, portability clause, right to reside and deciding what to do if there is a surplus from downsizing)
But while we are both alive, can your partner go after your share in event of divorce?

And even if you don?t split up, would you lose control of the asset?
Could see potential problems if you decide if you want to sell and move, may be tricky as the asset is in a trust under someone else?s name.

OP if you put 'your share' in your (presumably a third-party other than your DP?) beneficiary's name and properly gift it to that individual then your DP should have no claim over it but equally, neither would you. So, what if you fall out with that person and he/she decides to force a sale of the property?

If it is in your name and you marry and later divorce then yes, you could lose it, or part of it, depending on the circumstances.

Ultimately there is no way to guarantee retention of your assets other than by not co-habiting, having kids, or marrying. The best you can do is make it as watertight as possible for now, and review the situation as and when your circumstances change. If for now you intend to remain unmarried with no kids then tenants in common with declaration of trust will ring fence your share.

For some reason most people are unaware that a 'post nuptial' agreement is binding. Whereas a pre nup is not although it is increasingly being given weight as long as you jump through several hoops.

A post-nup may not be binding if children are born after the post-nup. Also may not be binding if manifestly unfair even if children pre-date the agreement.

Mendi is right.
Your best protection of course is not to marry, just to live together. You can in some religions have the religious marriage ceremony but without the civil ceremony.
You can also take the risk of putting your share in a family member's name. You may need to pay them rent if you are setting it up to reduce inheritance tax I think but you are probably a long way off that life stage.