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Protecting Assets

Protecting Assets

We advise on way of protecting assets before marriage and before and during separation and divorce. 

Prior to marriage we advise on pre- nuptial agreements, and prior to cohabitation, we advise on cohabitation agreements where an agreement can be recorded formally between the parties by agreement, which generally follows a negotiation and financial disclosure. Following a marriage, intentions can be recorded in a post- nuptial agreement, if agreement can be reached say in respect of one party ringfencing certain assets should the marriage break down in the future. 

We can also advise on setting up trusts and entering into loan agreements. 

Family money, trusts and inheritance is generally the most common assets we are asked to advise on protecting, although we advise also in respect of lottery wins and business assets and pre and post marital / separation assets.

We generally do not advise that assets are hidden or transferred to third parties prior to separation. Financial disclosure must take place and be open and transparent. Transferring assets to a third party, limited company or trust may be seen as an attempt at concealing an asset and placing it beyond the reach of your spouse. Even if a formal trust is drawn up, questions will be asked about it and full disclosure of its value will be required. If it seems that the trust should not have been created and is hiding a matrimonial asset that should be shared, the court will draw adverse inferences. Costs consequences can follow and conduct issues could arise if there is a blatant attempt to hide assets or income.  A court could make orders setting transfers aside with costs penalties and make injunctive orders freezing assets and bank accounts in these circumstances. 

All trust assets should be disclosed and the assets within it may be shared with your spouse depending on whether or not the assets are considered to be matrimonial or non- matrimonial and whether or not the needs of your spouse require it. The court has powers to make orders in respect of assets in a trust particularly if the trust is considered to be a sham or if the trust assets are used or have been used as a financial resource in the marriage. Further, the court has powers to vary a nuptial settlement. 

Generally, families intending to preserve wealth for future generations and avoid family money being diluted in marriage breakdown set up discretionary trusts. The trustees decide which of the beneficiaries receive assets and when and the terms upon which the assets and income is held on trust. Depending on the circumstances of your case, this does not provide full protection to family wealth in a future marriage breakdown or prevent them from being considered or shared by the court. 

If you suspect that your spouse may be hiding their wealth in a divorce, it’s important to act straight away as a court application may be necessary. Particularly for those with foreign connections, moving money offshore may be a simple step and so it is important that you seek specialist legal advice as soon as possible from an experienced lawyer. You may be able to apply for a court order to prevent assets being transferred abroad, for assets to be transferred back or disclosure orders to bring transparency to the asset landscape and preserve assets so they can be properly valued and taken into account in the divorce process.

Protecting Assets - Case Study

Resolution Together 

From December 2022 we will be able to provide a “One Lawyer Two Client” Process Option to clients. This is a process that has long been asked for by parties wishing to separate amicably without incurring the cost of two lawyers and risking the polarisation and disconnect that having two separate lawyers may bring. 

Our regulatory body has now approved and provided guidelines within which this service can be offered to suitable separating couples. 

It is likely to be a suitable process for spouses who have been open about their financial positions, will provide complete and transparent disclosure, are aligned on the outcome they think is best for themselves and their family and who would like one qualified an experienced professional to handle the process for them together. 

After screening for suitability, our role is to:

Facilitate financial disclosure
Provide guidance and information needed to reach a full agreement
Assist you both with negotiations
Reduce the risk of conflict
Increase efficiency and speed up the process as it is being reviewed by one lawyer not two
Act for you both with loyalty and in good faith and your common interest
Provide a professional and regulated service
Draft an Order for a Judge to approve

The outcome is that you will have worked together as a team with one lawyer to reach an agreement that is binding and ordered by the court. 

“Resolution Together” enables you to jointly instruct one solicitor to steer you both through the divorce and financial process and to help you create a binding outcome.

Please contact us if you would like us to contact you in December 2022 with more information on this process.

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