No such thing as personal property in a marriage - except personal effects. It's all "matrimonial assets", in theory.
If you could retain possession of assets through marriage, that would be as good as having a prenuptial agreement, and unfortunately they are invalid in the UK.
Not true. Were it so, it would not make sense to talk about transfers between spouses, and the tax treatment of same.
Also, at least in Scots law (which I think differs from English law on this point), there is no automatic amalgamation of pre-marital assets into the pot. Any transfers have to be explicit. By default, each spouse continues to own 100% of what they owned before, and would be entitled to retain that when the marriage ends.
Speak for yourself. I married a nice girl, I did, and did not get shafted when we divorced.
Not in Scotland.
Not in all of the UK.
In the opinion of almost every accountant and tax expert outside the IR, nothing. That situation is not subject to the settlements legislation.
In the opinion of the IR, it is.
Their argument is that the fee earner in such a company, by not taking a "commercial" salary (whatever that may be), is effectively gifting their effort to the company, and that there is therefore an element of "bounty" in the dividend, since the company would not have sufficient profits to pay that much dividend without the "gift" of effort. They are arguing that this amounts to a settlement of the fee earner's income on the non-fee earning spouse.
The court case, heard a few weeks ago will, if the judgment takes everything into account, settle this one way or the other. But it is almost certain that whichever side loses will appeal. The case involves an IT contractor and his wife, and is being supported by the Professional Contractors Group (PCG).
That's how it should be.
Where in the UK are prenuptials absolutely binding on the divorce court?
In Scotland retention of premarital assets is automatic unless explicitly transferred. Accordingly, only assets acquired jointly during the marriage, or explicitly transferred into joint ownership during the marriage, are capable of being divvied up in a divorce.
Although, as you say, this is in a sense "as good as" prenups, it's far from the same as general prenups being binding.
I'm not sure to what extent this principle extends to pension rights, but it makes sense that it should, on the basis that investments into the pension fund can be considered to be come from joint income after marriage, but not before. So someone with no pension fund marrying someone with 20 years' contribs to his credit, and divorcing after
5 years (during which he had made 5 further years' contribs and she none), should only expect to get her hands on half of roughly a fifth of the fund.
When you say "in Scotland" do you mean people who got married in Scotland or dpoes it depend on where they lived?
Robert
I think you should be right, but I don't know anything about Scottish law.
When I was getting my divorce, the solicitor did mention that the courts (in England) do looks slightly differently at a pension pot that was accumulated wholly before the marriage. In the end, she got the lot anyway because I had a business, a high income, and wanted good access to the children.
What's relevant is where (more precisely under which jurisdiction) the marriage takes place. If under Scots law, the assets do not pass into common property as presumably they would in England.
I forget what the residence requirements are for a marriage under Scots law to be possible. If all this Gretna Green stuff goes on, presumably they are not too onerous.
I don't know whether it would complicate things if the divorce were subsequently to take place under another jurisdiction.
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