Your Divorce And Your Will

Divorce is never a pleasant experience to go through. It can often be acrimonious and take a very long time to resolve. At the very best a simple divorce can be finalised from start to finish in four to six months. However, it is all too common for divorces to take well over six months to complete. In my career to date I have come across quite a few that have taken years to resolve, especially when there are financial matters and the division of assets to be decided.

Many people would not think about making a Will following a separation or in contemplation of divorce. It is very common for this minor but crucially important issue to be overlooked in the divorce process. If you separate from your spouse (or civil partner) and have not made a Will, should you die before the divorce is finalised, they would most likely inherit most or all of your Estate.

One very important issue to consider is ownership of property. You and your spouse may both have your names on the deeds to your property. There are however two ways the property can be owned.

The first is as joint tenants. This means that should either of you die (whether this is before separation, after separation, and EVEN after the divorce is finalised) the other would automatically inherit the other’s share in that property regardless of whether your Will stated otherwise. It is therefore vitally important for this to be changed. This is referred to as ‘severance of joint tenancy’.

The second option to change it to holding the property as tenants in common. In this situation the above rule would not apply. You could change the ownership position to that of tenants in common. Should either owner die, their share in the property would pass either in accordance with the intestacy rules or their Will. Whilst you remain married, even if you are separated, your share would still pass to your spouse as the intestacy rules state that in the absence of a Will, the surviving spouse is the main beneficiary. For anyone intending to divorce, it is usually the case that they do not want their former partner, and future ex husband or wife (or former civil partner), to inherit their money!

Your Will can also provide for the care of your children in the event of your death. You can state who you would wish to appoint as Guardian for the children. If you are the only person living with Parental Responsibility for your children, naming a Guardian in your Will automatically confers onto them Parental Responsibility for your children enabling them to care for them as soon as the need arose. It also makes clear your wishes in the event that there is a dispute regarding where children will live following the death of a parent in the family.

You will of course see that making a Will following a separation and in contemplation of divorce is very important and is often a matter overlooked by people during such a difficult time. Making your Will is actually a very simple process. It involves providing instructions during a quick and simple appointment, and thereafter attending again for a short appointment to sign it in the presence of two witnesses. Considering such a simple document can have such a huge impact in the event of your death, it is definitely something worth doing.