06.03.24

A recent survey [1] of divorced parents found that finances are the biggest challenge for over a quarter of respondents when managing arrangements with their ex-spouse about their children. It also found that over half of respondents said that money was one of the biggest fears of the overall divorce process.

Once a divorce or civil partnership dissolution is finalised and finances have been agreed, the parents can move on with the next chapter of their lives – but has everything been taken care of that needs to be?

In this piece, Private Client solicitor Sarah O’Sullivan explores what you should think about when it comes to Wills, Lasting Powers of Attorney and other aspects of planning for the future. She also invites the additional perspective of specialist family law solicitor Hannah Gumbrill-Ward.

Lasting Powers of Attorney (LPAs)

Divorced parents who do not have Lasting Powers of Attorney should give serious consideration to appointing trusted people – they could even nominate professionals – to be their Attorneys to ensure that maintenance arrangements and relevant wishes about their children can continue if anything happens to the parent.

Many divorced parents will have business interests, and these can often be one of the most contested aspects when it comes to agreeing finances upon separation.  Another important aspect is whether or not there is an LPA for the business in place. If so, does it need to be updated post-divorce?

There is a common misconception that LPAs will only be needed if someone loses mental capacity, often in old age too – but an accident, illness, stroke, serious operation, or even simply being abroad for a long time can mean an LPA is needed at any time and at any age.

For divorced parents who have LPAs in place appointing their ex-spouse, they will no longer be allowed to act as an Attorney when the divorce is finalised. However, are there any other Attorneys appointed who can still act? If so, are they in-laws or mutual friends who would no longer be appropriate?

It is therefore vital to make, or review, LPAs after divorce, and legal advice should always be taken to ensure these powerful documents are right for you.

Wills

Another common misconception is that a Will is revoked (‘cancelled’) on divorce, which is not strictly true. Hannah Gumbrill-Ward, specialist family solicitor with Family Law Partners, says:

When we first speak with new clients, we explain that they need to give some thought to their Will, as if they were to pass away post-separation but before their divorce or financial matters have been finalised, the Will that they have in place may not be reflective of their up-to-date wishes. As for making an application for a final order of divorce, we generally advise clients not to do so until their financial matters have been resolved not only, as Sarah has identified, because of the impact that a divorce has upon their Will, but also because married spouses have certain rights by virtue of their marriage which they lose on divorce (including with regard to pensions). It is therefore really important for people to think carefully about their Will once they have decided to separate (along with their financial matters more generally) as the unexpected can happen, and it is important to ensure rights are preserved in case something does.

Although an ex-spouse is treated as if they had predeceased for inheritance purposes upon divorce, the Will itself remains valid and in place. It is crucial for divorced parents to check that their Will says everything they want it to about:

• who should be Guardians for young children
• who will receive the estate
• how children receive their inheritance (e.g. at a particular age, via a Trust, etc.)

Decision-making and inheritance for vulnerable children

Parents of disabled and vulnerable children often face additional challenges in terms of protecting their child’s inheritance and ensuring it does not impact their care needs or benefits entitlements.

Divorced parents should take advice from an experienced, specialised firm about what tools are available to protect their vulnerable child’s future.

They should also consider getting tailored benefits advice following the change in circumstances, to ensure that they are receiving everything they are entitled to.

Renaissance Legal’s own team of specialist benefits consultants have a wealth of experience in the benefits system and have worked with hundreds of individuals and families to make sure the right benefits are in place.

As children and those without mental capacity cannot make Powers of Attorney, divorced parents should take also take specialist advice about what decisions can be made – and how – on behalf of their child in the next phase of their lives.

As we know from our work with families, ensuring the long-term security and happiness of any children is the paramount concern and we encourage our clients to look at this through a long-term lens, which can be hard if/when emotions are running high during the breakdown of the relationship. Hannah Gumbrill-Ward adds: ‘where parents are struggling to make a decision, or even have a conversation, about matters related to their children, we encourage them where appropriate to seek the assistance of a mediator or family consultant who can help them navigate those difficult conversations and prevent them from becoming very acrimonious discussions. This is to try and preserve co-parenting relationships for the sake of the children involved’.

Seeking personalised financial advice

Divorced parents often have assets such as cash lump sums, pensions, and investments as part of the financial settlement. It is important to seek qualified, independent financial advice from an adviser who makes recommendations tailored to you as a person and to your personal circumstances.

How can we help?

Our friendly and approachable team of specialists can provide you with advice and recommendations based on your personal circumstances.

If you would like to discuss any area relating to this blog post, please get in touch and speak to one of our specialists on 01273 610611 or email us at info@renaisssancelegal.co.uk

[1] YouGov PLC online poll of 1,003 adult divorcees in the UK between 20-25 November 2023 (commissioned by Irwin Mitchell).