This post began as a commentary on the Zero Hedge article on the law:
Every nation-state has a body of laws woven into the fabric of society. As Peruvian economist Hernando de Soto has commented on extensively, the stronger the rule of law, the stronger the economy. And by “stronger” laws, I mean laws that are impervious to tampering for personal or political gains.
The connection between a sound judiciary and economic health is readily comprehensible, except maybe to a politician… businesses and individuals are far more likely to invest capital in a country with understandable laws that are impartially and universally enforced than if the opposite condition exists.
That’s because the lack of a consistent body of law breeds uncertainty and adds a huge element of risk for entrepreneurs.
About the same time, the novel I’m currently writing got itself into difficulty by beginning to turn on the nature of property ownership between a married couple. I didn’t complicate it with civil partnership and/or shorthold tenancies. As I live in eternal fear of making an inaccurate statement, it became necessary to read the law as it pertains to England and Wales.
Much of this we all know anyway but still – to see it in black and white was horrifying. the booklet I used was this:
… and it’s significant that though it speaks of men’s rights under law as well as women partners’, the picture on the cover is of a sad and/or battered wife and the thrust is clear throughout the pages. In short, it is a guide to getting one’s hands on someone else’s property, using the courts.
To me, this is criminal. One thing we never did [in my case in RLand now I think it might have been useful] was get a tenancy-in-common at the beginning. The advantages are that both parties get to dispose of their share as they see fit, that is, by will and testament. That’s as it should be.
Even if the marriage is one of those old fashioned types where the wife does not plan to take the husband to the cleaners and treats him with respect, unlike today, it’s still a good idea and actually protects her too in the eventuality, particularly if one share is held in trust, say for any children.
The disadvantage is, of course, that it involves probate in the case of death. Still, I’ve been though probate and it wasn’t too bad – a few months.
Seems to me that both partners at the beginning are fairminded [otherwise you wouldn't marry] and so there would be three partners – husband, wife and any children. Other agreements can be added that if one wanted to depart the TIC, then it would be seen differently if the home was home to the children as well. On an island, as in the novel, there are commercial interests as well, so how far does the word “home” extend? That needs to be defined.
You’d also want to put in clauses which make it unattractive for one or other spouse to be bumped off, i.e. it would be a real financial disadvantage through death rather than divorce and contested divorce would diminish the gains. I think it could be tailored in legalese to ensure that.
I’ve never seen anything more outrageous and women wonder why men won’t marry! So, even though the home is owned entirely by the man, she can get the court [and in the UK, this comes under social policy provisions] to take it off him and given to her. Thank goodness that never happened in my life and now I think I came out of it relatively unscathed, although it looked bad at the time.
My approach, were I to marry again, would be tenancy-in-common but I’d also specify survivorship to her through my will in the event of death and there’d be fair and proportional provision of other property also in that will but in the event of her instigating divorce, there’d be severe disadvantage to her.
There’d be a clear percentage interest in the property based precisely on the money put in [including expenses] and I’d also specify that if the proportion of investment of the property altered, this would automatically be reflected in altered percentages.
Pre-nups are unpleasant and kill love but now I’m thinking that they’re best made when all is still luvvy-duvvy at the start.
That should keep it out of the courts. I’d also specify the child’s right to remain in the family home and that I would be willing to move out if I was bought out. I’d also put in that none of my portion be transferred to a new partner of hers under any circumstances.