Tying the knot again? Think about these simple steps

If you’re remarrying, there are various legal and financial planning issues you may want to look at – to protect family harmony as well as family members’ financial security

“I am a marvellous housekeeper. Every time I leave a man, I keep his house,” said the Hungarian-US actress Zsa Zsa Gabor. If you’re below a certain age, her name may not be familiar to you, but the key point for the purposes of this article is that she married nine times. If anyone knew about marriage, remarriage and financial settlements, she did.

We don’t want Zsa Zsa Gabor’s life story to put anyone off the idea of remarrying, but if you are embarking on a second (or subsequent) marriage or civil partnership, it’s important to do some legal housekeeping of your own. This especially applies if you’re coming to the marriage with assets of your own or children from previous relationships.

Protecting your assets 1: the prenup

In Scotland, the assets you acquire before your marriage are not generally counted as part of the ‘matrimonial pot’ if you split. However, if those assets are no longer in the same form, some grey areas open up. For example, if you use those assets to buy a new home, investment property or business with your spouse (or future spouse), they could then become part of the matrimonial assets, to be divided between you.

For that reason, prenuptial agreements are increasingly popular among couples who bring their own assets to a marriage and want to ringfence them. Is this unromantic? Not at all. By bringing clarity, prenups can build trust.

Key points - prenups & postnups

• A prenuptial agreement describes how you will divide your assets if your marriage or civil partnership breaks down.
• Unlike in some countries, a prenup is legally binding in Scotland – assuming it has been drawn up properly.
• If you are already married and don’t have a prenup, you have the option of a postnup.

Protecting your assets 2: your Will

A prenup or postnup can ringfence your assets if your relationship hits the rocks, but you also need to plan what happens to them when you die. There could be various scenarios here.

Leaving everything to your new spouse or civil partner. The simplest way to make this happen is to put it in a Will.

You don’t have to wait to remarry to do this, and in fact, it’s a good idea to review your Will at an earlier stage – for example, at the time of divorce or the end of a civil partnership. If you do want to leave assets to a new partner, it’s best to put this into a Will as soon as possible. If you don’t do this and you die before marrying, your inheritance arrangements could be decided by your previous Will or by Scotland’s rigid intestacy laws, leaving your new partner in a precarious financial position or even homeless.

Leaving assets to your children. Another common scenario is that you want to share your assets between your new partner and your children from a previous relationship (or leave everything to the children). Again, you need to put this in a Will; otherwise your children may miss out.

There are also practical ways, such as trusts, to provide for your new spouse during their own lifetime, but then pass the family home or assets back to your children.

With both scenarios, and others too, it’s important to get advice about your circumstances and stop procrastinating. That should be the case with any major relationship change, whether it’s the end of a marriage / civil partnership or the start of a new one. Don’t rely on good luck or good manners to deliver everyone’s happy endings.

Key points - Wills

• Unlike in England and Wales, remarrying in Scotland does not invalidate your existing Will.
• However, divorce or the end of your previous civil partnership does affect any sections of the Will that mention your former spouse / civil partner, so you should review the Will anyway.
• In Scotland, spouses and children have “legal rights”, allowing them to make a claim on some of your assets, even if you leave them out of your Will.

Key points - other paperwork

• If you split up or remarry, it is worth checking your various pension and life assurance policies, including job-related benefits. For example, you may want to change the details of the people you nominate to receive any death-in-service benefits.
• If you have a Power of Attorney naming your ex-partner or spouse as your attorney, you will probably want to revisit this. So too if they are the executor of your Will.