It is not an uncommon situation that the extended family can be significantly wealthier than the couple who are separating. Sometimes, the parents of one spouse can have provided assistance to the couple during their marriage and the other wants to argue that this is likely to continue to be the case, so it should be taken into account when considering how to divide up the capital assets or even when considering any claim against income.
Judge’s starting point
The general starting point for any Judge considering the matter is to say that parents, or wider family members can make their own decision as to how to gift their money and the court cannot legally require them to make such payments. So unless the parents are making it clear that it will continue, the Judge is not going to assume that it will remain in place.
Impact of anticipated inheritance
This is even clearer when it is not a question of present support, but of money to be left to a spouse on the death of wider family members. Due to the lack of automatic rights of inheritance under English law, the court will not take into account provision under a Will for someone who has not yet died. If the person bequeathing the assets now lacks mental capacity, it might be possible for the court to accept that money is to come to one spouse but there is then a question of timing, and whether the funds available will reduce, most usually through care costs.
In the case of Alireza v Radwan and others (2017) there was a particular argument put forward by the husband that the wife’s future inheritance from her father should be taken into account by the court as a resource that she was likely to have in the foreseeable future. It was clear in this case that she would receive around 20% of her father’s estate as she was from a Saudi Arabian family where forced heirship rules apply.
The Judge considered actuarial tables which estimated that the wife’s father should live another 16 years. He dismissed the wife’s argument that her father might give the money away or lose it – and it was probably relevant in that consideration that the judge found the wife’s father to be extremely wealthy.
The judge who dealt with the case on its first hearing felt that the resource of the wife’s future inheritance would justify allowing her and the children to live in a property, subject to a payment being made from that property (or from the funds she was expected to receive) at a later date. This was despite the fact that the husband clearly was found to have sufficient resources to purchase a property for the wife and children outright.
Court willing to exclude a guaranteed inheritance
On appeal, the Court of Appeal agreed that the future inheritance was a resource, which could have led to a lower lump sum being awarded to the wife, but as, in the first decision, it had not, she should have a further sum to buy a house in her own name outright. Part of the court’s thinking was a need to respect the wife’s autonomy and not leave her in the hands of a series of men, financially reliant on her husband, then her father.
Financial independent is a factor
This may be a case very much on its facts, but it shows the court being prepared to exclude a guaranteed inheritance. It instead took the view that the wife should be provided for, in a manner to give her financial independence, from the resources of the marriage. This is a clear signal to couples with lesser assets and less clear inheritance or gifting prospects that it is unlikely to increase one’s share of the family pot, by pointing to what might (or even will be) coming to the other spouse from their wider family.
Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.
More Family Law Articles
The initial consultation with our divorce lawyer will cover a. options for resolving your claims, b. financial disclosure, c. potential outcomes, d. arrangements for children.
Family Wealth Protection: how to protect wealth passed to adult children in the event of future relationship breakdown.
Collaborative divorce is a process where you and your former partner commit to settling matters without going to court. This is a short guide to how it is intended to unfold.
A guide charting the steps in achieving a financial settlement on divorce.
A guide on how to get a divorce in England and Wales - 5 steps to put you in control.
Where there is a real risk that an asset of value is going to be disposed of or in some other way removed beyond the reach of one spouse, then an application can be made [...]
Couples need to know that a well-drafted nuptial agreement means they can have greater control over their futures.
Our Family Law and Trusts & Estates teams joined forces with Rathbones Cambridge during November to provide a wealth management seminar for our clients and partners.
A recent discussion on Radio 4 disclosed that a number of women said they had divorced without realising that they could claim against their husbands’ pension schemes.
This may be a case very much on its facts, but it shows the court being prepared to exclude a guaranteed inheritance.