This episode of Splitting Up dot pod hears the story of love after loss and the importance of good advice when it comes to wills and financially protecting the children from a previous relationship.

Family lawyer Joanne Major hears from "Elizabeth" who began a new relationship after the death of her husband and the father of her children, only to see it break down.

Joanne hears about the huge differences between "common law" relationships and marriage from Lucinda Connell, an experienced divorce and financial remedy solicitor and the importance of making a will from Christian Swinburne, a property and wills expert.

Joanne 0:12

lHello and thanks for joining me again on SplittingUp dot pod where he hear stories from people who faced some big challenges while separating, and then talk to the experts for their thoughts and reflections on what happened. I'm Joanne Major, a family lawyer in the north east of England, and the creator of the website SplittingUp.com.

Joanne 0:37

I've just got to say at the outset, that as everyone's situation is different, although our podcast is intended to be helpfully informative and thought provoking, it cannot be taken as legal advice. For more information on this all-important disclaimer, please go to the website's podcast page.

Joanne 0:59

Today, we're hearing about the importance of seeking legal advice after a bereavement, even when you might think it's not necessary. "Elizabeth", not her real name, had gone through the trauma of losing her husband, and things were looking up when she met someone new. But as you'll hear, some well-timed legal advice protected her from losing even more when a new relationship fell apart.

Elizabeth 1:30

My name is Elizabeth and I wanted to share my story to help anyone who might find themselves in a similar situation to the one I was in. Without good legal advice, it could have been a very different journey for me.

Elizabeth 1:49

I met Peter at a very low time in my life. I'd just lost my husband unexpectedly, I was in my late 40s, both children were under 10 - so young, it was a devastating time - and I was at the most vulnerable period of my life. I didn't expect to be a widow in my 40s.

Elizabeth 2:12

Fortunately, my husband and I had both made wills, but even so it was so stressful and draining, trying to navigate the death administration process alone. Everything was a blur back then I just felt that I was on automatic pilot. I do however clearly remember being advised not to get married again without getting back in touch with a solicitor. I was warned it would affect me and potentially the children financially.

Elizabeth 2:47

I was deeply concerned how I was going to manage and unexpectedly Peter came into my life. My whole focus in the early years was bringing up the children without a dad. I didn't want them to suffer any more. At the outset, Peter seemed keen to take on that role and to give him credit, initially, he was very helpful and supportive with the logistics of family life.

Elizabeth 3:18

However, things were complicated dealing with a new relationship and a bereavement, working, juggling the needs of the children who had just lost their dad, and then also the competing needs of Peter and his expectations. It was often hard finding the strength just to keep everything normal.

Elizabeth 3:40

As time went on, Peter moved into my home - the children's home - a very big step for me and I accept it couldn't have been easy for him either, stepping into another man's shoes. We never did get married. I had a weariness of exposing myself to further hurt after the tragic circumstances in which the children lost their father. I also remembered the legal advice I'd received to touch base before embarking on a second marriage, possibly a subconscious red flag.

Elizabeth 4:16

Sadly, there were a lot of false promises made, a lack of emotional support, lack of financial support, lack of contribution, and slowly the dynamics were changing as the children were getting older, and indeed more protective of me.

Elizabeth 4:36

Things came to a head when my father became very ill. He had become the father figure to the children, and I could sense a further loss to them. They were going through public exams, my mum had developed the early signs of dementia, and I felt very alone - I didn't have anyone to turn to at that point. It was a very difficult time, a time I could have done with some emotional support to be honest.

Elizabeth 5:05

When my father died, it was the turning point for me. I knew Peter was never going to be that companion and best friend that I would have hoped for in a long term relationship. We agreed to part company which was a hard decision, but ultimately the right one for me. Fortunately, despite being very vulnerable, I had been careful to keep our financial affairs separate, so we didn't need to get into a difficult settling up arrangement when we split up.

Elizabeth 5:37

Things could have been very different if I hadn't taken good legal advice at the outset. In retrospect, had we been married, I could have jeopardised my children's financial future as well as my own.

Joanne 5:55

Well, that was a very moving and in some ways, a very inspiring story from Elizabeth, who's clearly had a very difficult journey. Today we're going to be looking at the difference between what sometimes known as a common law husband and wife - people who live together - and a married couple when it comes to separation.

Joanne 6:13

I'll be speaking to two lawyers with many years of expertise between them: Christian Swinburne, who is a property and wills expert, but first of all, Lucinda Connell, a very experienced divorce and financial remedy solicitor originally from Northern Ireland, who has been a family lawyer for 25 years. Hello, Lucinda.

Lucinda Connell 6:32

Hello, Joanne.

Joanne 6:33

We obviously heard Elizabeth they're explaining about her journey following the death of her husband, and she then entered into a new relationship with Peter, but she didn't marry Peter, she was living with Peter for a number of years before they split up. Could you just talk me through Lucinda, why is that relevant? Why does that really make a difference? A lot of people talk about common law wife and common law husband, which we know as lawyers is an unusual term, but really, I think what people are thinking about as people who live together, rather than those parties who live and get married, there is a big distinction in law, isn't there as to whether or not you are cohabiting or marrying. Could you just talk me through that a little bit?

Lucinda Connell 7:15

There is there's a huge difference. And I think it's one that people aren't necessarily familiar with even today, I still hear the reference, common law wife, common law husband frequently It's a concept that doesn't really exist. There is no such thing as a common law wife, you don't get an extra rights or claims because you've been living together for any specific period of time. And sometimes you could have lived with a partner for 20 years, had children and suddenly find yourself penniless, no home, no claim over your partner's pension. And I think it's important to highlight those differences because it's such a stark contrast to how married couples would be dealt with.

Joanne 8:02

So Elizabeth's case would have been very different, wouldn't it Lucinda, if they'd been married rather than just if they'd been living together?

Lucinda Connell 8:08

Yes, Elizabeth would have probably found herself in a much less favourable outcome had she and Peter been married. Very different laws apply for married couples and couples who live together. Couples who aren't married if their relationship breaks down, it's actually dealt with under civil laws and in the civil court. If a couple is married, then the financial issues arising from the breakdown of that marriage will be dealt with under family law rules within the family court.

Lucinda Connell 8:39

And for couples living together, the law can actually be really quite punitive. The starting point is that an asset owned in someone's sole name belongs to them, whilst any assets and joint names is divided, equally 50/50. And sometimes that can create significant unfairness.

Lucinda Connell 8:59

In Elizabeth's case, it worked well, Peter didn't contribute towards her home, and she was able to retain that. If Peter had contributed financially, he may well have been able to establish a claim or an interest in Elizabeth property, and given that it's civil law procedures that deal with it, it could ultimately lead to really very expensive, very difficult legal wrangling in the civil courts.

Lucinda Connell 9:26

I think the key point here, Elizabeth had had advice at the outset, and she knew how to protect herself, and I think it really stresses how important it is to make sure you have that advice, and consider some forward thinking. The circumstances surrounding a second marriage are nearly always more complicated than the first marriage. Often the parties will have children from a previous relationship to consider, and either a both of them may have wealth or assets which they had acquired prior to that second marriage. When you get married, your second spouse will be entitled to most of what you own if you die, or indeed a share of the assets if the relationship ends in divorce. And I think it's key to stress here that this could ultimately leave your children from your previous relationship with very little, or even nothing at all, without the requisite planning and taking good advice at an early stage.

I think sometimes perhaps when they're in the heyday of a remarriage, and maybe especially as children are approaching independence, that perhaps sometimes the children are overlooked in a sense of thinking: "how do I protect the children? Should the relationship go wrong? What happens if we do get divorced? What happens if perhaps one of us dies?" It's definitely a bit of a loophole that I think isn't really, there isn't enough consideration given to that.

I think it's really important to think about what might happen if that second marriage ends, perhaps by death, or by divorce. And it might seem difficult or pessimistic to start thinking about that in the happy early, early days of a promising relationship, but if you've already gone through a divorce or a relationship breakdown, you'll be aware that sadly, relationships do break down. And dealing with the issues arising from that can be stressful and painful.

You want to do all you can to avoid the stress and ensure that you and your children or perhaps grandchildren are fully protected in the event of another relationship breakdown. Even if you aren't planning to marry, there are still steps that can be taken to try to protect yourself and indeed children from a previous relationship, and one thing that I would recommend people look into is a cohabitation agreement or a living together arrangement. It's akin to a pre-nuptial agreement, which I think a lot of people will be familiar with, but it's for those who are simply choosing to live together. And that agreement can set out what they want to happen to their assets in the event of the marital breakdown.

And I suppose also in that situation of living together, it's pretty important, isn't it really to ensure that your state - your will and your affairs - are also considered?

Yes, that'sabsolutely correct. It's vital to make a will. And you need to be aware that any will made before the second marriage is invalid. If you have children from a previous relationship, you'll almost certainly want them to receive an inheritance in the event of your death. Be aware that on remarrying, your children or any grandchildren, will not automatically receive any of your hard-earned assets. Ordinarily, your assets or most of them, will automatically pass to your new spouse and their children rather than any children you might have.

So that sort of deals with safeguarding the relationship if it ended in death, but what about divorce? Is there any particular thing that we need to think about there?

Normally the matrimonial assets which the spouses will have are generally shared between them on divorce, and of course, if we're looking at second marriages, this can and often does include the sharing of assets which may have been brought into the marriage by only one of the parties. What that can mean in practice, is even if one party came into the marriage with a great deal of wealth, owning their own property, pensions, built up many years earlier, they are assets which could be shared ultimately with the other spouse. You may be keen to try to ringfence those assets, which were acquired some time ago, not least with a view to safeguarding these for your children's future inheritance, and there are options available to assist. Under those circumstances, I would certainly recommend the parties consider a pre-nuptial agreement, and that is an agreement between the parties, which effectively sets out what they would like to happen to their assets in the event of the relationship breakdown.

Can I interrupt you there Lucinda? Some people I think would they've read in the press in the media that these pre-nuptial agreements, are not legally binding. So what's the point? Or you know, sometimes people say these prenups aren't they just thing? Aren't they just a thing of the rich and famous and you know, if I don't have a particularly big estate, what's the point? So if they're not legally binding, and they're really just the playground of the rich and famous, what why did why do people bother with them? What what difference would it make having one or not?

That's actually not the case perhaps so much nowadays, and pre-nuptial agreements are increasingly common. It is true that a divorce court doesn't necessarily have to rely on that pre-nuptial agreement. However, the courts increasingly do if they're satisfied, both parties knew what they were getting into, they had some legal advice before the agreement was signed, and ultimately the agreement seems fair, which could take into account the fact that one party had built up a significant amount of wealth prior to that relationship. And it is undoubtedly better to have a pre-nuptial agreement in those circumstances than not.

And perhaps if I can add here, one other fact that people may be less aware of is you can actually have a post-nuptial agreement. So even if you're already married, and you think, "well, I would like to now consider what should happen in the event that we separate," you can have a post nuptial agreement, which is effectively the same as a prenuptial agreement.

I know that's very interesting, because I guess a lot of listeners maybe haven't even heard of what a post-nuptial agreement is. So I suppose is that a little bit then like correcting something that maybe you didn't think about at the time of a prenuptial agreement? So you're married and might have been for a year or two, and you think, oh, gosh, I didn't actually think about the children of my first marriage or following the death in Elizabeth's case of her first husband. But actually, it's something I want to think about now. It's a way of correcting that, I guess, is it?

That's absolutely right, and really takes us to the point, always take legal advice, and it's never too late to do so.

Thanks very much, Lucinda. So perhaps you could summarise for us all, in a nutshell, what the key steps would be for anyone to think about sort of, in this situation of a new relationship,

I think doing things exactly as Elizabeth did. And in a nutshell, careful planning, forethought and legal advice. And that's the key message I would ask people to take away. It might seem difficult raising issues of wealth and inheritance at the outset of a new relationship, but ultimately, planning ahead can prevent difficult and prolonged legal wrangling and arguments at a later stage, and particularly at that difficult time when the relationship may be breaking down, or you're suffering the pain of having long lost your partner.

I would recommend that you discuss the situation with your children if they're old enough, and be open with your partner about your concerns. Marriage or any long term serious relationship can prompt difficult conversations about family interests and current assets, wealth and inheritance, and people can be torn between wanting to provide for a new partner and protecting wealth for their children.

People don't always think about the what ifs and I guess, legal training - that's essentially the training that we've had for so many years, isn't it to Crystal Ball gaze and think about those things that may happen - how can you best protect that unknown? So thank you very much Lucinda today for that very helpful information, and if anyone has any questions arising from it or want to have a consultation with Lucinda, then please just head over to the splitting up.com website, and you'll find Lucinda's details under the expert divorce and financial remedy lawyer. Thank you again.

Thank you very much.

Let's dig a bit deeper now into the issue that listen to touched upon: that of wills, how important they are and how to get one. And so I'd like to turn now to Christian Swinburne, a property and wills expert.

Hi, Jo.

So today we're going to be looking at the wills aspect really in the main because of course we heard what Elizabeth was explaining there. Is thre something that you would like to sort of talk us through things as to what would those problems be? And what steps could you give to our listeners today that they could perhaps take if they were in a similar situation?

Well, Elizabeth's story is very sad, but sadly not that unusual. And it is quite common with second relationships. The big problem invariably is that emotions are often running high, the person who's lost a husband or who've been divorced, is feeling insecure anyway, and their concentration is trying to look after their family.

When another person comes into that realm, then it's very much a matter of splitting their loyalties between the new relationship and their original family, and it's essential that they do take advice before forming those relationships to put a protective coating around the family assets for the children just purely because the second relationship could go wrong.

And without any proper advice about wills or putting property in some sort of protective trust or similar, then everything could be lost for the original family. So making provision in a will is essential, not least, maybe for appointing guardians to look after the children if the mother or father dies, but also to make sure that the property and assets are protected for them moving forward.

So let's let's just be clear here then Christian, so somebody has a marriage following the death as in Elizabeth's case, or indeed, somebody's divorced and then remarries - if they haven't made a will, or updated or changed the well and they remarry, and that relationship goes wrong - so for example, it ends in divorce, or as I say, and God forbid, they unexpectedly died - if they haven't updated or change the world, but they've remarried, would that have serious consequences on the children of a previous marriage or relationship?

Absolutely, if you're if you're remarried, your spouse would inherit everything if you didn't have a will. So that could include the house from a former relationship, your children's family home, and any assets that belong to the previous family, they would all pass to the new spouse. And that's why it's very important to have a will in place and, and also to make sure that other people know about that will, to to ensure that there is protection for the children, principally.

So when you say about other people should know about it, I guess really, what you're saying is that there could be, for example, on a remarriage, rather unscrupulous spouse who in the event of unexpected death, could get rid of that will couldn't they, I suppose, and say there wasn't a will, if they were aware of adult children or minor children who potentially would benefit under it? What could you recommend people could do in those circumstances?

Well, that does and can happen and frequently does. And there is a will register - you can register your will at the National will registry - and that means that there is a national record of that will to give that protection.

The most important thing is to make sure if the children are adults, obviously, if they're children, you can't, but if the children are adults, to make sure that they know about the will and also perhaps have executors that aren't necessarily family members and make sure they know about the will and have a copy of the will as well.

And at that point, any professional drafting of a new will would always question the old well and why it's been changed, and it would mean that you can't just get rid of a will, because there's evidence that it existed.

That's really good practical advice, isn't it, that whoever's really named in the will or trustees or whoever you're placing your trust, you should ensure that they have a copy of what your intentions are. Just to prevent any unknowns?

Absolutely. People are very shy about talking about wills, because they think it's a private document and something that isn't going to come into force until they die. but fundamentally, it's important to discuss your wishes with all your family members, not just the ones that are necessarily going to benefit just so the family know what your intentions are.

And that's really helpful Christian, and I think it really sort of encapsulates really everything that Elizabeth was saying about the importance of getting legal advice. It's about not just thinking of your own new relationship, or how that may or may not end, but it's very much also thinking particularly about the children, and what would happen to them in the event of a second relationship, marriage or living together agreement breaking down, you need to protect their estate.

Just I suppose one practical thing, Christian, before we go and let you get back to the day job. Could you just sort of give us a rough idea on the sort of costs of drafting a will, I appreciate them, probably asking you to say, you know, everyone's circumstances are different, of course, but just a rough idea.

I think, unfortunately Jo, people are very wary of going to see lawyers because they think it's going to be expensive, but it's an old line that the most lawyers make money out of people who haven't made the correct provision, not not the other way around. A basic will, and not everybody needs a basic will, but a basic will starts at 150 pounds plus VAT. You move up the scale, but not very far, depending on what your needs are, but we'd like to talk through all the issues with our clients, and it may be a basic will is what's needed, but you've still talked through the process and work out what the family makeup is because if you don't know what the family makeup is, you don't know what protection and provision is required.

So we'd like to get to know our clients. We say we operate a cradle to grave operation, which sounds morbid, but it's a matter of knowing the family makeup and knowing how people tick to make sure that what they get is what they need.

That's great Christian, really, really good advice. Thank you. So thank you very much Christian for joining me today. And perhaps we can meet again Christian and talk about your other expertise which of course is in relation to property matters, which also, of course, can particularly impact couples following a breakdown of a marriage or a separation. So, thank you very much Christian.

It's a pleasure Jo.

And if any of our listeners have any particular concerns about their estate or how to protect their estate, then feel free to of course, get in touch with Christian - his details are listed on the expert site under the provision of real estate. So please do get in touch if you would like to have a consultation with Christian.

So that's it for this episode. Thanks to Lucinda Connell and Christian Swinburne, and of course to Elizabeth for sharing her story with us. It's often hard to talk about what we've been through, but there's so much that people can learn from the experience of others. If you have a case which you'd like to share, please do get in touch with me through the website, where of course there's even more information and lists of experts to contact. The website is of course SplittingUp.com. I'm Joanne Major, thanks for listening, and I'll see you next time.