Question: My wife and I have a stormy relationship. My parents want to transfer their home to me, for us both to live in, as part of inheritance tax planning, but they are worried that if my wife and I divorce, she will be entitled to half. Is there anything that can be done?
© Malcolm Willett (www.willett-ink.co.uk)
Answer: I expect that you, like most people, will have heard of pre-nuptial agreements (prenups) but few have heard of post-nuptial agreements.
Strictly speaking, a prenup is not legally binding but, in reality, a well-drafted prenup will count for a great deal in the event of a divorce and, of course, it is always possible that the law on prenups may strengthen them in the future.
Postnups are entered into after the wedding and are contracts governing financial arrangements between spouses during their marriage or after a separation and can be very flexible.
However, more importantly for you, a postnup can be contractually binding following a court decision in late 2008 (McLeod v McLeod).
Accordingly a postnup could be the answer for you as it should give your parents confidence to transfer the property on the understanding that if you and your wife do separate the property will be excluded from any settlement and if the worst does happen then the house is protected unless there are extraordinary circumstances in which the court feels it has to intervene. I suggest that you instruct an experienced family lawyer to advise you.
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Fiona is a partner in the property team at Thring Townsend Lee & Pembertons Solicitors www.ttuk.com.