The Legal and Financial Reality of Marriage and Divorce with Alex Hirst | Transcript
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Hannah Witton
Welcome to Doing It with me, Hannah Witton, where we talk all things sex, relationships, dating, and our bodies. Hello, welcome back to Doing It. Guess what? I'm getting married soon. And so I thought it was only fitting to talk to a divorce lawyer. How romantic. Always good to keep your options open people. But in all seriousness, getting married soon has got me thinking about the actual, practical reality of marriage. It is, after all, a legally binding contract. But no one tells you that part in all the fairy tales, and stories, and probing questions from grandparents. We hear all about the romance and love narrative, the emotional, relational side of marriage. But what about the legal and financial? They missed those parts and Cinderella. Not only did she become a princess when she married the prince, but she also technically was responsible for half of the mortgage on that castle. So I thought a divorce lawyer would be a great person to chat to about all this stuff and actually give me some answers.
My guest this week is Alex Hirst, an associate solicitor at Boodle Hatfield, specialising in family law and disputes in divorce finances, children, and prenups. In this episode, we talk about what goes in and comes out of the matrimonial pot, what actually makes a happy couple, Alex demystifies prenups, I discovered that London is apparently the divorce capital of the world, who knew. And we talk about money and finances in relationships, marriage, and what are some tips and tricks to avoid needing to hire Alex to sort out your divorce. Thanks so much to Alex for her time and expertise, in this episode. I hope you enjoy discovering more about this topic as much as I did. As usual, you can find information about what we talked about in the show notes on DoingItPodcast.co.uk. And let us know what you thought over on social media @DoingItPodcast on Twitter and Instagram. Hope you enjoy this episode.
Hey, Alex, thank you so much for taking the time to chat with me and share your expertise with us.
Alexandra Hirst
That's a pleasure.
Hannah Witton
I've got a question I want to drill you with and this has been one where I've posed the question to our audience on Instagram, where we've like had the most questions. Like I think people are so curious about this topic around the legal and financial reality of marriage and divorce.
Alexandra Hirst
Great.
Hannah Witton
So I guess I'm coming at this, because I'm getting married soon, which is one of the most legal, like serious contracts that you'll ever enter in life. And like, I've bought a flat and when that happened, you know, a lawyer looks out for the mortgage contract. And everything was explained to me because it's like, this is serious stuff. But so why has no one explained to me what marriage means? Like, why has this not happened?
Alexandra Hirst
Yeah, I mean, congratulations.
Hannah Witton
Thank you!
Alexandra Hirst
And, yeah, I think it's really interesting. We have a sort of society where marriage seems to be this kind of casual, next step, and it's this kind of assumption that you you do it and you don't even really need to think about it, and it's rare that people focus on the legal, financial aspects. Because, of course, it's not very romantic. I mean, you just, you just get engaged. It's not the first thing you want to think about.
Hannah Witton
Yeah.
Alexandra Hirst
But I mean, and we don't have any really, any real legal education in this country unless you decide, for your sins, to train as a lawyer.
Hannah Witton
Yeah, it never came up in PSHE.
Alexandra Hirst
No, and it's something that I think I'm still quite passionate about it now that I am a lawyer because I think gosh, it really it's a really important aspect of life. I mean, everything we do is, is governed by a law in one way or another. So, and also, you know, it's this kind of very English thing that we don't like having serious conversations about our finances. It's incredibly important because once you are married, you are legally bound to your spouse, and you have a financial responsibility for each other. And that comes with a raft of benefits and protections such as different rules in relation to tax. So you can kind of gift things to each other without there being same tax consequences if, as if you weren't married, or consequences when, if either of you should die. And then there's a huge difference in your rights when when you come, if you come to separate, not when, that's my cynical divorce lawyer talking; when you when you inevitably separate.
Hannah Witton
Oh my goodness. Well, either by divorce or by death.
Alexandra Hirst
Exactly. So you, but particularly in relation to divorce, the the difference between a married couple and a non married, cohabiting couple, this is hugely different. You're You're quite exposed, if you're not married
Hannah Witton
Okay, so this is something that I've always said, but I've no idea if it is true. But I always say it's easier to get a divorce if you're married. But what I mean by that is like, it's easier to break up, if you're married. Like if you had a serious relationship, cohabiting, had children, and you were to break up, that's potentially messier than -
Alexandra Hirst
Yeah, I can see, I think, yeah, I think you're right, in some respects, because if you're, if you divorce, so your married and your divorce, there's a whole range of financial remedies available to you. And everything that you own, either individually, jointly, or anything that you earn, individually or jointly, is sort of taken into account as a matrimonial, matrimonial pot, and then the court would look at how that should be appropriately and fairly divided. Whereas if you're cohabitating, and you're not married, it comes down to what's in your legal ownership. So for example, if you live with someone for 20 years, and you own a flat, and they live in the flat, but they they don't own it legally, you could just beat them out and that's the end of it. And they'd have quite a task, unless they'd been kind of really financially contributing to it, or, you know, maintaining, doing huge works to it, they'd have, they'd have to kind of bring quite a complicated civil claim. So, it's, you're right, it is much, you know, could be potentially much more tricky if, if you're cohabiting insofar as, you'd have to really try and prove, um prove your case, if if you wanted to make a financial claim, whereas for for divorcing couples, those rights are kind of automatic.
Hannah Witton
Yeah. Right. We're gonna get on to like a lot of that like nitty gritty stuff in a bit. But I thought first, as a kind of disclaimer, what is, or is there, a difference in the UK between marriage and civil partnership? Just to kind of clarify those two terms.
Alexandra Hirst
Yeah. So I mean, practically speaking, there's a slight difference in how they're formed. So a marriage would be done by a kind of exchange of vows, and a civil partnership by the signing of the documents. And -
Hannah Witton
Ah okay, so you don't have to exchange vows in order for a civil partnership to be legal.
Alexandra Hirst
I don't believe so. I mean, but obviously, you, a lot of people want to say, you know, you don't need to have a ceremony, but a lot of people still want that element. There's also slightly different terminology. So you dissolve a civil partnership, and you have a divorce in a marriage. But in terms of the financial consequences of dissolving a civil partnership, they have the exact same financial rights as a married couple. So we can, when we talk about, and I think this is a point to sort of say from the beginning, as well, when we're talking about divorce, the divorce aspects, or the decision of a civil partnership is, is kind of a kind of minor, it's not a minor thing, but it's it's not the most time consuming element of what people refer to as the divorce. So the actual dissolution and divorce is a kind of paper process. And what people talk about when they refer to divorce usually is the kind of resolution of the financial aspect. So that's the bit that takes time, and it's a more complicated thing, because you are separating two people, financially with a view to them moving on separately and independently with, uh, with their lives. So I think, you know, when we talk about divorce, that's, that is encompassed in that.
Hannah Witton
Yeah, it's like on a practical level, how do these two people who were living together -
Alexandra Hirst
Yeah.
Hannah Witton
Live independently like viably, as well.
Alexandra Hirst
Yeah, yeah, exactly.
Hannah Witton
Yeah, that makes sense. And then I guess another thing that was recently announced is that we would have no fault divorce in the UK, or just an England. But either way, what is no fault divorce? And how is this potentially going to impact couples who want to get a divorce in the future?
Alexandra Hirst
So at the moment, there's one ground for divorce, and that's the irretrievable breakdown of the marriage, and in order to prove that, you have to cite one or five facts. And in order to have a divorce immediately, the only two facts you can use are either adultery, or unreasonable behaviour where you cite a series of things that have made it impossible for you to continue to live with your spouse.
Hannah Witton
Would it be abuse under that category, then?
Alexandra Hirst
Oh, absolutely. Yeah. So I mean, and I mean, it doesn't have to be behaviour as strong as abuse it, but it has to be strong enough to get over a certain certain hurdle so that you can show that there's been an irretrievable breakdown. And there was a recent case, which just kind of been, called Owens, which sort of started this real push for no fault divorce, or at least kind of accelerated it. Because the judge found in that case, that the wife was not entitled to a divorce, because she hadn't proved it, that was satisfactory unreasonable behaviour. So we now, there is going to be no fault divorce, it's been approved in Parliament, but when it's, it's not enforced yet. And it might not be until 2021/2022. But it will mean that you do not have to cite a reason, a kind of a reason for the divorce at the at the start. So I think it will be I mean, most Family Lawyers have been calling for this, because as I said, the actual divorce element is not usually a significant part of the case. And it's not something that people would be well advised to spend a lot of time arguing about. And yet, because of this fault element, it can mean that people, you know, have to sort of labour over it and start off the process in quite a negative way. Because they've had to think about -
Hannah Witton
Think of a reason.
Alexandra Hirst
Exactly, and that can, that can cause a lot of problems and you know, you spend sometimes quite a bit of time as someone's solicitor, trying to say to them, this bit really doesn't matter, which is quite difficult, because of course, someone's coming to the end of their marriage, they may feel very strongly about why, you know, why it's come to an end and feel they need to apportion some blame. But in terms of the financial outcome, it's not going to make any real difference. So hopefully, no fault divorce will allow people to start off on the on a more positive footing. But again, I don't, it's not this kind of quick fix to litigation, because they're still have to sort out the -
Hannah Witton
The financial side of things.
Alexandra Hirst
Yeah.
Hannah Witton
So it's always, it always comes back to the money being the tricky part.
Alexandra Hirst
Yeah, exactly.
Hannah Witton
So one of the questions that came up a lot, that people are like really curious about is, they just want to know what insights, through doing your job, you may have gained into relationships and why relationships break down? What maketh a happy couple, or should we just bin this idea of a successful relationship all together. Like, we have this notion that heads that divorce means the relationship was unsuccessful. And it's actually not a good mindset to be in.
Alexandra Hirst
Yeah. Yeah, it's really interesting. And it's one of the really fascinating areas, or aspects to the job. It's something I speak about with colleagues a fair bit. I think we would all agree that in the way that you're kind of entering into legal contracts, if you fail to do your due diligence with, on the person you're going to marry, then that's, that's probably going to lead to some problems down the line. So you need you need to be really clear about who this person is, and be confident that you can sort of successfully enter into a partnership with them. And for there to be this recognition that it's not always fun and it's not always, you know, dancing across meadows together, it's serious financial conversations, it's you each having a terrible time, you each maybe not wanting to see each other again, or feeling that, but managing to kind of get through it. I think you know, where marriages break down, you can sometimes see why it's happened if people have rushed into it, without knowing the other person and not being, because of that, not being able to weather the difficult times, or there being a lack of communication. Some people do marry for money. I think that's, you know, I've seen that. And I think also, you do see relationships breaking down, where there's been a kind of major change in the in the couples circumstances, and they've not been able to kind of recalibrate after that. So, I mean, to what maketh the successful marriage. I mean, I don't think I'm the kind of last word on this, but from what I've observed, is this ability to communicate effectively, and, you know, a partner that I work for, he's been doing this for a very many more years than me, he would say you need to marry your best friend, and, you know, have that relationship with someone where, you know, you're both prepared to put in a lot of effort and, and have the recognition that it's not always plain sailing. But and in terms of, should we bin the idea of of successful relationships? I don't, I don't think we should, I think we're kind of quite focused on, you know, breakups, and people really like a kind of divorce story. You don't often see, you know, couple married for 50 years, as a headline.
Hannah Witton
Yeah, it's the getting together and in the breaking up that's what we see. We never see just the boring slog
Alexandra Hirst
No, exactly, and maybe you find it quite irritating if people do go around saying how successful their marriage is. But I think, you know, there are very many happy marriages, and there are marriages that, you know, end up in divorce, that were very successful relationships, you know, while it lasted, and people shouldn't kind of forget that. And I think the, the average length of a marriage ends up in divorce, as of 2018, was about 12 and a half years.
Hannah Witton
Oh decent.
Alexandra Hirst
It's still quite a long time. It's not, you know, the union for life like it should be.
Hannah Witton
Longer than any relationship I've had.
Alexandra Hirst
But, you know, I think if people and if people can undo exit marriages, on good terms, and it's, I guess, that if they had children, and they managed to continue to be parents, to those children in an amicable way, and put their children first that could be seen to be a hugely successful relationship, because you've managed to put your differences aside, even on divorce and, and continue to be there for your children in a positive way. So I don't think it's quite time to bin the idea, but I think -
Hannah Witton
Change it.
Alexandra Hirst
But yeah, change or, you know, recognise that there's different interpretations of what a successful relationship is.
Hannah Witton
Yeah. One of the things that I like to say about, or at least about my relationship is that I kind of like sometimes treat it like running a business, because I'm just like we are business partners. And this business that we own together is like our life, our lives.
Alexandra Hirst
Yeah.
Hannah Witton
And so we have to, like, manage it, together.
Alexandra Hirst
And I think it's a really good analogy. And if, as I was saying, you know, it's not, you know, sometimes running a business must be, you know, the best thing ever, you see the fruits of your labour, and sometimes it feels like a miserable slog.
Hannah Witton
It's also about knowing your strengths or weaknesses, or just being that you're good at that thing, I'm good at this thing.
Alexandra Hirst
Exactly.
Hannah Witton
We can, you know, work together, but separately if need be. So, another question that came up a lot, and it's also one that I'm really curious about, is around prenups.
Alexandra Hirst
Right, yes.
Hannah Witton
What is a prenup? Also, I feel like I've only ever heard about them in the context of like, US dramas. So yeah, is it even a thing in the UK? And then another question that came up a lot, are they just for rich people? And can you do your own without a lawyer?
Alexandra Hirst
Right, so what is a prenup? It's an agreement entered into between two people before they get married, setting out what will happen to their finances on divorce. So it's it's an agreement that's intended to give you both clarity and to avoid the situation where you're where you're arguing about your finances, should you divorce?
Hannah Witton
Yeah, what if things change? Like could you have a prenup before you get married and then go whilst you're married, you go oh, we should probably change that.
Alexandra Hirst
Yeah, you can. You can. You can you can review it and adapt on a change of circumstances.
Hannah Witton
If you didn't have a prenup before you got married, could you create one whilst you're married?
Alexandra Hirst
You could, yes, it's called post nuptial agreements. So ou can do it before or after.
Hannah Witton
Oh, I'm learning things
Alexandra Hirst
And they do work in the UK. So not quite in the same way as, as they are bandied around and sort of US sitcoms, but then, so in England and Wales, they're not technically legally binding. But what they constitute is as a factor that the court would take into account when looking at the party's finances. So and if they're done properly, they're highly persuasive. So they, to make them as watertight as possible, you have to ensure that they're entered into properly, with each party having specialist, independent advice. You'd want to ensure there was no duress, that both parties fully and properly understood the consequences of entering into the agreement, and that the agreement was fair. So it might mean that one party would have to make a financial provision for the other. So it's not just a case of I'm really wealthy, I don't want you to have my Chateau in France, so I'm gonna ring fence everything, you're not getting hands on anything. That's, that's not what's gonna happen, you know, you can't leave someone with nothing. And are they just for rich people? I mean, they're not, anyone could enter into one. But usually, it's only worth entering into if you have got disparity in the wealth between the parties, and that, and that one party has a sort of category of assets, or has a significant amount of wealth that they want to protect. But I mean, ultimately, if you don't want your partner to have anything on a divorce, then you shouldn't really get married, if you don't want to risk.
Hannah Witton
Good point, I think also, I guess, they would come in use if say, you already had children, for instance, and you were marrying somebody else, and you wanted to protect some of your assets that would, that are for your kids.
Alexandra Hirst
Well often, yeah, often people do it on second marriages, you'd you wouldn't be able to sort of get away with not providing for a new spouse. But certainly it would be a way I guess, of ensuring or trying to ensure that on your second marriage, though the, your spouse didn't get quite as much and therefore, there'd be more of your assets that you retain, to pass down to your children. And I guess, when you're talking about succession planning, that will come into ensuring you've got a proper will in place, that specifices where certain assets should pass.
Hannah Witton
Where everything goes.
Alexandra Hirst
Yeah.
Hannah Witton
So all of those things would be like taken into consideration, basically.
Alexandra Hirst
Yeah, so so, so in a nutshell, it's it's a document that you're using, before you get married, to set out what should happen if you divorce, and with a view to kind of protecting certain specific assets for protecting, you know, wealth, where there's where there's a big disparity between you and the person you're marrying.
Hannah Witton
Right. They've always been such a mystery for me, so thank you for that insight. So this question came up, what's the point of till death do us part if you get divorced anyway. And what this made me think of was, so the registry office that we're getting married at, sent us a document with all of the different like, various scripts that you can use for your ceremony. And one thing that I was really shocked by was that there are only two things that each of you need to say in order to have a legally binding wedding, and then obviously, also sign the certificate. But everything else was just fluff. And included in that fluff is the till death do us part bit.
Alexandra Hirst
Yeah.
Hannah Witton
You know, what's going on there.
Alexandra Hirst
I guess this goes back to the kind of ceremonial aspect of marriage. So even where aspects of what you say or the wording around around it aren't strictly necessary for that, for you to be legally joined together. They're still important to some people, insofar as they want to make this public commitment and promise and a sort of solemn promise, you know, there's nothing I guess more solid than sort of referring to this marriage lasted lasting until you, one or other of you dies. So that can be quite powerful. And I think it's, it is still important for some people to to make that commitment and to put it in those kind of Stark terms, in front of their friends and family. Because of course, you don't need to get married and I'm not saying that if you're, you know, I was with my husband for 10 years before we got married, and if someone had said, oh your relationships not very important, because you're not married, it would have really annoyed me. But there's something I guess about, you know, it's still something about saying those words in front of people you've gathered around you, and thats still important to people. So, I mean, in a sense, there's no point to them, because you get a divorce if you want it, and any takes one of you to want to divorce for that marriage to be ended, or that civil partnership to be ended. So there's a strong argument to say there's, there's no point to it, but I think, you know, it's, it's still, it can still be seen to be an important aspect of going through that rite of passage.
Hannah Witton
And then this kind of comes back to what I was saying before about why no one's explaining marriage to me and stuff. Is there such a thing as secular pre marriage counselling? Because I believe in the church, you might have somebody in the church who like counsels the couple beforehand who goes you're sure? You know what this means?
Alexandra Hirst
Yeah, there is secular pre marriage counselling. There's quite a few practitioners offering these services for sort of any type of relationship. And I think it's important, or at least useful to talk for me about your relationship with a kind of neutral third party before, before you dive into this important union. Because it does give you the chance to talk through things. I mean it's a bit like a mock exam, you don't really do it, but once you've done it, you kind of oh, yeah, that was probably worth doing. That's gonna help me a bit. But yeah, you can do it. And, you know, we had marriage lessons, I found it quite, it was quite illuminating really think you know, someone, you kind of talk about it with someone who's kind of asking these, prompting you and it's quite interesting, what comes out.
Hannah Witton
What happens in these marriage lessons?
Alexandra Hirst
Well, you're kind of given guided questions on various topics, such as how do you resolve disputes? Or what's your view about managing this aspect of your life? Would you like to have children? Things like this. So kind of asking the kinds of questions, which if you hadn't considered them, going back to what should you do to sort of prepare for marriage, I think these are the kind of big issues that you know, could cause huge problems for you down the line if you haven't considered them together. And, and so I think it's, and actually when people come to do prenups, it sometimes feels a bit like a sort of marriage counselling, because you're making them think about how, you know, their finances are going to be managed and sort of making them have this sort of openness about their finances before they do get married. And it's it's very shocking to me, actually, how often people don't really know the full extent of their fiancé's wealth, or, you know, they haven't thought about these things that you would just assume that they had, or would assume that they know about. So, yeah, I think, even though it sounds a bit bizarre, and it certainly sounded bizarre to me that I think that pre marriage counselling can be very, very useful indeed.
Hannah Witton
Yeah. Okay. We've had a lot of questions about divorce, obviously. And this one I found really interesting. So, is sleeping with somebody else, an explicit breach of contract? What if you're polyamorous? And so yeah, this got me thinking about how is adultery defined in the law, and are there so yeah, what's going on here?
Alexandra Hirst
Yeah, I see, I see what you're getting at. So I guess in a sense, it is a breach of contract, because you've, you know, the traditional idea of a marriage is that you are being joined to your spouse to the exclusion of all others. However, if you were seeking to cite adultery as a fact leading to the to the breakdown of your marriage, you would, you'd have to that would have to be a sort of issue for you. So if you've lived in a polyamorous relationship, you've accepted that adultery, then you can't really then cite it as a reason for the breakdown of the marriage. So yeah, adultery in a kind of legal sense, is having sex with a member of the opposite sex.
Hannah Witton
Yeah I read that, because -
Alexandra Hirst
Yeah.
Hannah Witton
Same sex relationships don't count as adultery, legally.
Alexandra Hirst
Exactly. Yeah. So you can't have an affair with, well legally, with a member of the opposite sex and cite that adultery.
Hannah Witton
Yeah, that is wild to me. It's actually, why is that? Is it's just the law hasn't caught up?
Alexandra Hirst
I guess it's, exactly. So it's it's the law kind of moving in line with what was traditionally the definition because, you know, marriage was historically between a man and a woman. And now, of course, happily we have same sex marriage and soon, it won't really make a difference, because we'll have no fault divorce. So it's kind of moved on in that way.
Hannah Witton
But if you're, if you're a gay married couple, you legally can't commit adultery.
Alexandra Hirst
No, exactly. You couldn't use it, you couldn't use it as a reason to cite in your in your dissolution or divorce of your marriage.
Hannah Witton
That is wild. So on adultery, if that's something that you cite, for the reason for divorce, are you then entitled to more money? I think that's what this person's question is saying.
Alexandra Hirst
So, no, you might feel like you're entitled to do more, but you're you're not. The cause of the breakdown of the relationship doesn't impact on the financial outcome.
Hannah Witton
Like you were saying at the beginning, how, in the legal process, how insignificant that part is?
Alexandra Hirst
Yeah, so it's not, you know, it's not a course of morality, you don't want people to be, you know, you don't want people to have to kind of root around and sling mud, you want to kind of move on. So, I mean, there are examples in in financial cases where behaviour has been a reason for someone to get money, but it's very extreme behaviour, and it's usually financial misconduct. So it's resulted in the other person being, you know, having less money. So that's the only kind of way it would come up. Or if they'd had an affair, and were in a settled relationship with a third party, and there wasn't that much money in the case, then it's possible that the third party, if your spouse was living with them, and had this kind of settled cohabiting relationship with a new with a new individual, then their finances could potentially be taken into account, because you might argue, well, you might argue that they were being supported financially by this new third party. But any, it's quite difficult to argue, and you'd have to prove that they were in a in a kind of settled, cohabiting couple and having that financial support. So I think that the short answer is if someone, if someone commits adultery, they're not entitled to more, no.
Hannah Witton
Right. Okay, so we talked a lot about how assets are generally split. And someone asked a question is like, is it actually just split straight in half? But I'm guessing it's depends on a lot of people's circumstances. But my question is, what about debts? When you get married, are you taking on 50% of that person's debt?
Alexandra Hirst
You are, yes. If they want to divorce?
Hannah Witton
Fantastic, because I have a mortgage and student loan going into this marriage. Dan has no debts. So -
Alexandra Hirst
So he's really, hopefully, he's done his due diligence on you. And he's accepted you, with your debts?
Hannah Witton
Yeah, assets, debts and all.
Alexandra Hirst
Yeah, so what happens when you divorce is that everything is looked at in the round. So you, when we go to hearings, we'll we'll go armed with a sort of asset schedule, which sets out all of the assets, so property, bank accounts, pensions, and then liabilities as well. So everything is pulled together, and then you have an overall figure at the bottom, showing you what the what the match, marital assets are. And then once you have that overall figure, you can look at how, how best to distribute things and how how to achieve a fair outcome. So that's how it's done.
Hannah Witton
Okay. So we have a specific question here. If I inherit my mum's house while I'm married, does my partner take 50% of it, if we get divorced? And then also, if you own property before you're married, is your partner also able to take 50% of that in the divorce?
Alexandra Hirst
Yeah, so as I was saying, the, you know, regardless of who owns a property, when you when you're married, and if you come to divorce, then everything is set out as a, to show what's in their kind of matrimonial pots, and then you look at, and then if there's enough money to meet each of your needs, the starting point might be one of the qualities so does a 50/50 split, but then you can seek to argue, and that's that you, there's a case for you to move away from 50%. So say, there was, you know, millions and millions of pounds, and there was more than enough for each of you to be rehoused and move on with your lives, then if one of the spouses had a property that they'd inherited, there might be an argue argument for them to say that that shouldn't shouldn't go to the other person, that should that they should get more than 50% because of that, and, you know, if you've never been used by the parties, and been kept very separate, and these are the kinds of assets that would perhaps be appropriate to be ring fenced in a prenuptial agreement. So if you had a specific property, prior to marriage, that's that you'd inherited and you didn't think it was appropriate for that to be up for grabs on a divorce, then you could you can seek to protect that by by entering into a prenup. But it really depends on the overall assets.
Hannah Witton
So once everyone is like viably independent.
Alexandra Hirst
Exactly, yeah, you're probably not going to be able to keep it if there's no other property available because you're going to want, you're going to need to sort of divide it appropriately to, so that you've each got enough money.
Hannah Witton
Yeah, to live.
Alexandra Hirst
Exactly.
Hannah Witton
And someone said, I've heard of someone having to send their ex a percentage of their pension payments in the future, what? And this reminded me of a story I heard again, on the grapevine, of an author who got divorced and her partner, I don't know whether he got it, but he at least argued for getting a percentage of anything she earns from future books, because he would have been an influenced in some way.
Alexandra Hirst
Yeah, so this is a very stark difference between when you're married, and if you're in a cohabiting couple. In that, if you're married any divorce, you have access to this whole range of financial remedies, and one of those is a pension share. So what, you could have a huge million pound pension and what might happen is that pension would be shared, so with your, with your ex spouse, so that, in fact, they would take a percentage of that pot, so you know, even half of it, and that would be moved over to their pension provider, and that would be theirs.
Hannah Witton
Okay, so at the time, you just like take a percentage lump sum, because I was getting like if you get divorced, and then you have to keep on speaking to this person for the rest of your life.
Alexandra Hirst
There are, there out there are outcomes where where you would have to do that, because there would, there might be some financial entanglement going forward. So what the what the family court houses this idea of a clean break. So the, what you're hoping to achieve for the couple is that there is this separation, and they don't need to have anything to do with each other in the future. But yeah, you might have, you might have an outcome where one party has to pay maintenance to the other because they don't have their own income. So you would be joined in that respect. So it's not always possible to completely disentangle a couple immediately on the divorce.
Hannah Witton
Man, that's, that's kind of scary how messy it could potentially get. And so this this question, I'm curious about, have you come across many men who've taken their wives surnames?
Alexandra Hirst
I haven't. And I'm not sure, from thinking about cases we've had, that any of my colleagues have. We certainly seeing men that have double barrelled their names, and what I've more commonly see is women that haven't taken their husbands names. I didn't take my husband's name, and I know a lot of women I work with have retained their maiden name, professionally. And you also I guess, see children taking their mother's maiden name instead of their father's name, which, I guess was more traditionally the case, but I haven't no, I haven't, I haven't personally, I'm sure it does happen, but I haven't personally seen that.
Hannah Witton
Yeah, dear listeners, if you or your parents, or anyone you know, friends are one of those people, let us know. Okay, so these are some more kind of like society based questions. Do you think marriage is a social construct? And here's the thing, I'm like, well, this is my answer to this. Yes and know, because it's also a legal construct. So it's like it's real, because it's written in the law, but also, the law is, we made up the law as well.
Alexandra Hirst
Yeah.
Hannah Witton
So you could also say the law is a social construct.
Alexandra Hirst
Yeah, I agree with you, I think it undoubtedly began as a social construct and developed as this rite of passage, as a union between two people, usually two people, certainly in this country. And but it's, it's, it's become more than that. There is this huge legal and financial consequence of, of marriage. And, of course, what marriage is has developed over time. And, you know, as I was saying, happily we now have same sex marriage to reflect the fact that marriage is not just as it traditionally was, a union between a man and a woman, it's between same sex couples. So that you know, that we have civil partnerships for same sex couples, and now for for heterosexual couples. So it does move on, and the law evolves to keep up, hopefully, with with how society changes.
Hannah Witton
Yeah. Do you think, so we talked about cohabiting a bit, and someone asked, if you have a significant other, and you live together, you don't want kids so you're not getting married, is there any potential like, down the line, legal and financial problems that could come from that scenario?
Alexandra Hirst
Well, yeah, I think I think there could be because, as I was saying, you don't have the same rights as a married couple, if you were to separate. So if you don't have a legal interest in the property you were living in, for example, you could be very exposed. And if you were being maintained by your partner, again, that that money is not, doesn't have to be continued if you if you separate, so it can, it can lead to some very, very unfair situations. And the dangerous thing, I think, is that cohabiting couples are the fastest growing type of couple in this country, and yet, nearly 50%, of the population believe in this thing called sort of common, common law marriage.
Hannah Witton
Oh, I was gonna ask about that.
Alexandra Hirst
Okay, that's, that's the kind of belief that if you have lived with someone for X amount of time, you somehow take on the status of a spouse, and therefore have certain rights. But unfortunately, that's, unfortunately for the kind of financially weaker party, that's, that's not the case. And, you know, it can lead to some, some very, very unfair situations where people haven't realised.
Hannah Witton
So it's common law marriage like an urban myth, or like, where does it come from?
Alexandra Hirst
I have no idea where it comes from? Maybe it's a kind of naïve hope that
Hannah Witton
Is it's an American import?
Alexandra Hirst
I really don't know. I mean, I think it just comes from this, this. This, I guess, it comes from the fact that we generally have a very fair legal system, certainly we're one of the most, if not the most, generous system in when it comes to divorce. So London, for example, is called the divorce capital of the world because of the, because of the the outcomes that are financially weaker party can can achieve. And so maybe people operate under the illusion that no system that you know, has these kind of type of types of outcomes on on divorce could possibly leave someone with nothing if they've been together for 20 years. But -
Hannah Witton
Do you think something like common law, marriage should be a thing? And with this, because I almost believe that we shouldn't be punishing people who choose not to get married for whatever reason, in that kind of way.
Alexandra Hirst
Yeah. I'd be inclined to agree with you and there's, there is a huge sort of debate amongst Family Lawyers about what to do about this. And it's certainly something that people are calling for, again, a change in the law to reflect how people are living and how, you know, couples operate and how people don't necessarily get married and the sort of in justices that can be done when when a relationship of, you know, certainly a long relationship comes to an end. So I, the problem is how do you then resolve that? And how do you know do you do you say, ahh, well, a relationship of five years is long enough to -
Hannah Witton
Yeah, like where do you draw the line?
Alexandra Hirst
Yeah, exactly. So I think that's where the difficulty comes.
Hannah Witton
Is there an equivalent of a prenup that a cohabiting couple could draw up and sign first so like if we were to breakup, then this is what happens?
Alexandra Hirst
So you can enter into living together agreements, you can do things that if you own property, you can enter into deeds of trusts to set out
Hannah Witton
That's what we're doing.
Alexandra Hirst
Okay, well, that's very, very savvy of you. Of course, you're getting married. So in a sense, it's kind of, you know, potentially worthless, I guess if down the line if you end up getting divorced.
Hannah Witton
But I guess it's one of those things, again, where it's like it, it would be used in consideration. It's not like the be all and end all.
Alexandra Hirst
Yeah, alongside, for example, a prenup or something like that. But yeah, I guess that there are things people can do. But, you know, ultimately, the protection comes with marriage.
Hannah Witton
Wild. I thought common law marriage was the thing.
Alexandra Hirst
I'm afraid it's not a thing.
Hannah Witton
Erm, when you mentioned about London being the divorce capital of the world, that reminded me of another question, which is about so we live in like a global international world. And if you get married in one country, like and if you want to get a divorce in, and you live in a different country, which country's laws are you using? And how does that work?
Alexandra Hirst
If you live in England, for example, but you've got married in Ibiza, you you would still, your divorce would be under the jurisdiction of the English courts if you live here, so it doesn't, certainly in this jurisdiction.
Alexandra Hirst
Then if you went back to Ibiza, are you still married? Or did they would they recognise the English divorce?
Alexandra Hirst
They would recognise English divorce. Yeah, so you can be married anywhere in the world. But when it comes to divorce, certainly in this jurisdiction, it's whether you're resident or habitually resident here. So it's where you're kind of based as a couple. And that tends to be the test generally, in most other jurisdictions. Obviously, the divorce law you know, jurisdiction laws differ country to country, but here, it doesn't matter where you got divorced. It's, it's where you're kind of settled. And if you're settled here, then you could have a divorce in England. So -
Hannah Witton
Yeah, one of my old University tutors, she went to went to Canada before same sex marriage was legal in the UK. And, oh my God I'm forgetting the story, it was either a friend or my university professor, or this happens to both of them. Got married to her girlfriend, so in Canada because same sex marriage was legal there at the time, but then couldn't get a divorce in the UK, because same sex marriage wasn't a thing.
Alexandra Hirst
Yeah. So there can be quite complicated conflicts of law issues. But yeah, that's a whole whole other world complexity.
Hannah Witton
Yeah. Oh, yeah. But my, I think my my friend who is in a situation like, she was technically married for like years, even though they like split up quite soon after the marriage, but they were still legally married for so long, because they had to wait until they could legally divorce in the UK.
Alexandra Hirst
Very difficult.
Hannah Witton
Yeah. Well, thank you so much for sharing all of your knowledge and your insight and yeah, thank you for letting me just, like probe you with all of these questions.
Alexandra Hirst
A pleasure. No, it's really interesting, what comes out, and, yeah, it's very interesting to me to see what people are most interested in and where, you know, there are still these confusions and misapprehensions about about what the law is, and hopefully, it will help people to be a little bit more well informed.
Hannah Witton
Yeah, and having those conversations with their partners that may not seem romantic, but effectively are going to be better for the partnership in the long run.
Alexandra Hirst
Exactly, exactly. And then you can focus on the romantic and fun elements and not have to worry so much, or at all about the boring bits.
Hannah Witton
Yeah. Yeah, well, thank you again, so much and -
Alexandra Hirst
You're welcome
Hannah Witton
Thank you for listening. Thank you so much for listening to Doing It. If you enjoyed it, I would really appreciate it if you left a rating and a review. You can find show notes at DoingItPodcast.co.uk and do go follow us on social media and I'll catch you in the next episode. Bye.
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