How do you value an estate for inheritance tax purposes?

If you’re acting as an executor of a deceased’s estate, an important part of your responsibilities will be to value any assets that form part of that estate for inheritance tax (IHT) purposes. Whether or not there’s IHT to pay, this will affect how you report the estate’s value, and the deadlines for reporting and paying any tax. This can often be a complex process, not least where the deceased owned various different types of assets at the date of death.

Below we look at the steps involved to work out the value of someone’s estate.

Step 1: Work out the market value of all the assets

When valuing someone’s estate, ie; the money, property and possessions of the person who’s died — you should start by estimating all the things the person owned with a monetary value, whether jointly held or in their sole name. You will need to add these up to get the ‘gross value’ of the estate. This can include things like their home, savings, stocks and shares, vehicles, jewellery, pension payouts, life assurance, and money they’re owed, such as wages.

You should be able to value some assets easily, for example, money in bank or building society accounts. In other instances, you may need the help of a professional valuer, for example, a chartered surveyor to assess the open market value of the deceased’s home.

Step 2: Deduct any debts, reliefs and exemptions

Having established what debts were outstanding at the date of death and deducted these from the gross value, this will give you the ‘net value of the estate’. This not only includes any debts and unpaid bills the deceased person still owed, but also any funeral expenses.

In addition, you will need to deduct any reliefs that apply to agricultural assets, businesses and business assets, as well as the value of any assets left to spouses, civil partners, charities or that are exempt for other reasons. The figure that you’re left with will give you the value of the estate that’s taxable. This is known as the ‘chargeable estate’.

Step 3: Work out the available inheritance tax threshold

You will need to take the basic threshold of £325,000. Everyone in the 2021-22 tax year has a tax-free IHT allowance of £325,000, known as the nil-rate band, together with a residence nil-rate band of £175,00 where applicable. You can also take any unused thresholds transferred from a late spouse or civil partner’s estate.

Step 4: Compare the value of the estate with the available threshold

You will need to compare the value of the chargeable estate with the available threshold(s). If the value of the estate is less, there’s no inheritance tax to pay. If it’s more, IHT will be due on the excess, typically at a rate of 40%. Once you’ve got all your information and figures together, you will need to report the estate’s value in detail to HMRC.

Step 5: Secure expert advice from a probate specialist

Whilst valuing the estate of someone who has died has been broken down into these relatively simple steps, the rules can become complicated, not least if substantial gifts were made within seven years of the date of death as this reduces the basic IHT threshold, or where assets were given away but for which the donor retained some benefit. The terms of the will can also affect how much tax is payable and who pays it when there are tax-free gifts or items left in trust.

If in any doubt whatsoever, prior to reporting the estate’s value to HMRC, expert advice should be sought from a probate specialist. The financial implications of valuing an estate incorrectly can be significant, particularly if the deceased’s estate is subject to inheritance tax. By securing the advice and assistance from a legal professional, this can give you the peace of mind to move on to the next stage in the process: applying for probate and administering the estate.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

What to do if you’re denied access to your child

Sadly, it’s not uncommon for disputes to arise over child contact arrangements, where being denied access to your child can be heartbreaking, both for you and them. However, there are steps that can be taken to resolve any dispute that you have with the parent or guardian with care, ensuring that you’re able to maintain regular contact with your child moving forward.

Try to reach an agreement

Even if you have parental responsibility for a child but you do not live together, it does not mean you have an automatic right to spend time with them. There is no immediate legal right to contact for a parent. That said, a court will usually grant the non-resident parent access, unless there’s clear evidence that this will be detrimental to the child’s welfare.

In some cases, a carefully worded letter, explaining your point of view, as well as the view the court is likely to take to access, can help to persuade your ex to see your perspective, and to accept that continued contact is in the child’s best interests. By seeking expert advice from a family law specialist, your advisor can help to set out the legal position in writing, together with reassurance in respect of any concerns that your ex may have over granting you access.

If agreement can be reached in this way, your solicitor can draft the terms of that agreement in writing and ask the court to approve those terms. In this way, the agreement will become legally binding. Provided the court accepts that the terms of any consent order are in the child’s best interests, the order will be approved without the need for a court hearing.

Where the matter cannot be resolved informally or by way of an approved consent order, you may instead wish to invite your ex to try mediation, in this way helping you both to reach an out-of-court agreement that is acceptable for everyone without recourse to the litigation.

Apply for a Child Arrangements Order

If you’re unable to agree to contact, you can ask the courts to decide at a hearing. If this happens the result will be a Child Arrangements Order. This is a court order stipulating who has primary care of the child, and the nature of any contact with the non-resident parent or wider family members the child lives with and who they spend time with. Prior to making an application to the Court, it is now a requirement that you attend mediation. However, there are certain exceptions to this such as you have been a victim of domestic abuse or the matter is urgent. However, except in certain cases, for example, involving domestic abuse, the court will want to see that you’ve at least attended a meeting about mediation first.

When a court determines any question with respect to the upbringing of a child, the child’s welfare will be the court’s paramount consideration. Here, a range of factors will be taken into account including the needs and wishes of the child, the capabilities of each parent in meeting those needs, as well as any harm that the child may have suffered or be at risk from suffering. In the absence of any safeguarding concerns, the courts will actively encourage a relationship between the child and both parents, even if objections are raised by your former partner.

A family law specialist experienced with dealing with these types of applications can help to prepare any case on your behalf, helping to ensure that an order is made in your favour for continued contact with your child. By having a well-prepared case, this can go a long way towards effectively defending any challenge raised by the parent or guardian with care.

Enforce a Child Arrangements Order

If you already have a consent or court order in place, but your ex is not keeping to the terms of that order, it’s often best to see if the matter can first be resolved informally. In many cases, this will be in the best interests of all those involved, including your child, especially where the breach or breaches of any order are relatively minor.

Legal advice should be sought as soon as possible so that every attempt can be made to resolve the matter without further recourse to the courts. However, as a last resort, there are legal steps you can take to ask the court to enforce its terms. Your legal advisor can also advise on all other available options, including further family mediation.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

Are prenuptial agreements legally binding?

Prenuptial agreements are becoming increasingly popular in the UK. Although prospective spouses rarely enter into a marriage anticipating that their union will end in divorce, more and more pragmatic couples are anxious to plan for this possibility — typically to protect inherited wealth or pre-marital property on any future breakdown of the relationship. 

Still, entering into a prenuptial agreement doesn’t necessarily guarantee protection over any assets acquired either prior to or during the course of the marriage, least of all where both parties have not sought independent legal advice before entering into this type of agreement.

Below we look at what a prenup is and how this works, and what requirements need to be met to help maximise the prospects of an agreement being upheld by a court on divorce.

What are prenuptial agreements and how do these work?

A prenuptial agreement is a legal contract that sets out how any assets and financial resources should be divided between a couple if the marriage were to breakdown. This is an agreement that is entered into prior to the marriage taking place, although it’s also possible to enter into a similar agreement after the event. This is known as a postnuptial agreement.

In either case, the agreement sets out a couple’s rights regarding any property, income and other assets acquired both individually and jointly. In this way, the agreement is designed to provide the parties with clarity and certainty around the financial arrangements should they ever separate, thereby reducing the risk of acrimonious or protracted divorce proceedings.

What are the rules relating to prenuptial agreements?

Under UK law, a prenuptial agreement is not automatically legally binding, where the parties to the agreement cannot override the court's discretion to decide how to redistribute their assets and income on an application for financial remedy. That said, the court must give appropriate weight to a prenuptial agreement as a relevant factor under the Matrimonial Causes Act 1973, in some cases, even decisive weight, depending on the circumstances.

In accordance with the guidance from the Supreme Court in the case of Radmacher v Granatino [2010] UKSC 42, the court should usually give effect to a prenuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.

Should legal advice be sought for prenuptial agreements?

The manner in which a prenuptial agreement is entered into will play a crucial part in how much weight the agreement is given by the court, where seeking independent legal advice will amount to strong evidence of a party's understanding of its implications.

In its assessment of fairness, various other factors will be taken into account by the court, including the welfare of any child(ren), the duration of the marriage, the responsibilities undertaken and assets acquired during the course of the marriage, and the future needs of both parties. Still, by securing the services of a family law expert before you get married, this will give your prenup the best chance of being upheld in the event of divorce.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

How much is Stamp Duty now?

If you’re buying a main home there is no stamp duty to be paid on the portion of the property priced at or below £125,000. So, if you spend up to £250,000, you’ll get the first £125,000 tax free, but will pay two per cent tax on the portion above that.

Anything you spend between £250,001 and £925,000 will incur 5% tax, rising to 10% for properties priced between £925,001 to £1.5 million. If you spend above £1.5 million, you will pay 12% in stamp duty tax. Stamp duty rates are higher for those buying a second home.

Stamp Duty Land Tax rates from 1st October 2021

Up to £125,000 Zero

The next £125,000 (the portion from £125,001 to £250,000) 2%

The next £675,000 (the portion from £250,001 to £925,000) 5%

The next £575,000 (the portion from £925,001 to £1.5 million) 10%

The remaining amount (the portion above £1.5 million) 12%

First Time Buyers

If you’re a first-time buyer you won’t pay any tax on homes priced at or below £300,000. However, you will pay five per cent on a property, or the portion of a property, priced between £300,001 and £500,000. If the property you’re buying is priced above £500,000, you won’t be eligible for a saving and you’ll have to pay the stamp duty rates above.

Protecting inherited property on divorce

If you’re recently separated or contemplating separating from your spouse you may be  concerned about the division of marital assets, especially if you’ve inherited money or property during the course of the marriage, or are likely to do so prior to getting divorced.

Below we look at how any past legacy or future inheritance prospects are likely to be divided or factored in on divorce, and what steps you can take to protect your financial interests.

How will any inheritance be divided on divorce?

In England and Wales, any money or other assets inherited either before or during your marriage are not automatically excluded from the matrimonial financial pot. This means that any legacy will not automatically be ring-fenced and, as such, may have to be shared between you and your former spouse or civil partner on divorce or dissolution of the civil partnership.

That said, every case is different. Ultimately, therefore, whether or not you will have to share your inherited wealth on divorce depends on the specific circumstances of your case. The primary consideration will be the welfare of any dependent children, although other factors could include the size of the inheritance, when this was received, the manner in which the inheritance was dealt with during the marriage and the financial needs of both parties.

If any inheritance has been mingled in with matrimonial assets, for example, put towards the cost of the family home or to pay off the mortgage, you’re much more likely to have to share this with your ex than if this money or property has been kept entirely separate from the family’s finances. Your inherited wealth is also more likely to go into the joint ‘pot’ where the financial needs of one or both parties cannot be met from the matrimonial assets alone.

Will any future inheritance be taken into account?

With regard to any future inheritance, this will not usually be taken into consideration when the financial aspects of divorce are dealt with by the court. This is because a potential legacy cannot usually be determined with any degree of certainty, where a testator could easily change their mind. It can also be difficult to gauge the life expectancy of any testator.

That said, albeit exceptionally, where there is an expectation of a significant inheritance after separation and a divorcing spouse is likely to receive that inheritance imminently, the court may adjourn part of a financial application on divorce until the inheritance is received.

How can any inheritance be protected on divorce?

If you wish to protect inherited wealth in the event of divorce, you should consider entering into a pre- or even post-nuptial agreement with your spouse or civil partner. This does not automatically protect any legacy if you later separate and subsequently divorce, but if entered into freely and fairly by both parties it may be taken into account by the court.

In many cases, however, protecting any inheritance is not something that a couple will seriously contemplate, not until the relationship begins to breakdown and divorce seems likely. Still, in these circumstances, agreement can still be reached as to who gets what without leaving it for the courts to decide. By seeking expert legal advice from a divorce specialist at the earliest possible opportunity, this can help you to navigate this often fraught and stressful process, and to help negotiate a settlement to safeguard your financial future.  

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

How to deal with the debt of someone who has died

Being responsible for administering the estate of a loved one after they’ve died is no easy task, and not without risk, not least if they’ve left debts behind. It’s a common misconception that unpaid debts will be automatically written off on a person’s death, but this is simply not the case. As such, as either an executor or personal representative of the deceased’s estate, discharging any outstanding debt will form an important part of your responsibilities.  

Am I personally liable for the debt of a loved one?

In the UK, debt isn’t inherited, which means that family or friends will not be liable for the individual debts of the deceased. This means that when a loved one dies with an outstanding loan, credit card or any other debts, provided these were in the deceased’s sole name they will not pass to you or anyone else, not unless you or any other individual provided a guarantee. 

However, even if you’re not directly responsible for repayment of the debt, for example, as either a joint account holder or guarantor, an outstanding balance will still need to be paid from the deceased’s estate prior to any assets being distributed amongst the beneficiaries. 

How do I know what debts are owed by the deceased? 

Part of acting as an executor or personal representative is taking reasonable steps to establish what debts might be owing and if there is enough value in the estate to discharge these. There are various different ways of doing this, although checking the deceased’s paperwork and bank statements, both manually and online, is usually the best place to start.

Needless to say, it’s possible that some debts may go undetected during a search of the deceased’s financial affairs, where paperwork or records have been lost, destroyed or deleted, especially if a debt dates back several years. It’s also not uncommon for unidentified creditors to surface at a later date, after an estate has already been distributed, where you could be held personally liable and be required to repay the debt out of your own pocket. 

To ensure that you’re protected from any liability, you can place an advertisement in the London Gazette and local newspapers requesting unknown creditors to come forward —known as a “Deceased Estates Notice”, this will demonstrate that sufficient steps have been taken to locate creditors prior to distribution of the estate. You’re not under any legal obligation to place a notice, but if you fail to do so you could put yourself at serious risk.

In what order do any debts need to be discharged?

In some cases, having determined the total value of the deceased’s estate, there may not be sufficient funds to pay off any outstanding debt. If the deceased had more debts than assets, their estate will be classed as insolvent. This means the beneficiaries won’t receive anything, where all assets must instead be used to clear the outstanding liabilities.

In these circumstances, executors and personal representatives will need to discharge each debt in a particular order. This is known as the order of priority, where any failure to follow this order correctly could again result in you becoming personally liable to the creditors. The order of priority means that secured debts such as a mortgage must be paid prior to even funeral expenses and costs relating to the administration of the estate.

Given the risk involved of dealing with an insolvent estate, you may want to consider renouncing your role and responsibilities as an executor, although ideally this should be done before you have become actively involved in dealing with the deceased’s affairs.

Should I seek legal advice when dealing with a deceased’s estate?

Given the potential consequences of failing to identify all outstanding creditors or incorrectly administering an insolvent estate, it's often best to seek expert advice from a probate specialist as soon as possible. In this way you can explore the options available to you and what steps to take to protect yourself from any personal liability.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

Inheritance tax and the 7 year rule

One of the most effective ways in which you can reduce the amount of tax to be paid by your estate after you die is by giving away cash or assets during your own lifetime. The effect of such gifts can be to remove their value from your estate, thereby reducing the amount of inheritance tax due after death. Below we look at which lifetime gifts are automatically exempt from IHT and how potentially exempt transfers, or PETs, work under the 7 year rule.

What lifetime gifts are automatically exempt from IHT?

Gifts as between spouses or civil partners are usually made tax-free, regardless of the circumstances or timescales involved. There are also other lifetime gifts that will not count toward the value of your estate because they are automatically exempt. These include:

•   The annual exemption: here you can gift up to £3,000 each tax year

•   Small gift exemption: an unlimited number of small gifts can be made of up to £250 per person, provided no other gifts were made by you to these recipients

•   Wedding or civil ceremony gifts: these gifts are subject to limits depending on the relationship between you and the recipient, and can range from £1,000 to £5,000

•   Living costs: you can make payments from your surplus income to help with the living costs of a child aged under 18 or an elderly relative.

What are potentially exempt transfers and the 7 year rule?

A potentially exempt transfer (PET) is a gift that is not automatically exempt, but for which no inheritance tax will be payable if sufficient time has passed since the making of the gift and the date of death. A PET will only become chargeable to IHT where you fail to survive for 7 years from the making of the gift. Under the 7 year rule, if a gift is made more than 7 years prior to the date of death, regardless of the nature or size of the gift, no inheritance tax will be payable.

However, even for gifts that fall within 7 years of death, some tax relief may still be available in the form of taper relief if your estate is chargeable to inheritance tax. Taper relief applies if the total value of any gifts made within the 7-year period prior to death exceeds the inheritance tax-free threshold of £325,000 (2020-2021).

Under the taper relief rules, inheritance tax is payable on a sliding scale, from the full 40% IHT rate for gifts made less than 3 years ago, down to just 8% for gifts made within 6-7 years of death. As such, lifetime gifts, even in respect of those made within a few short years prior to the donor’s death, can have a significant impact on the amount of tax payable after you die.

To understand more about how lifetime gifts can be used to minimise the tax payable on your estate on death, together with other mechanisms that can be used to reduce any liability to IHT, professional advice should be sought from an Estate Planning and Wills expert.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

The effectiveness of an Enduring Power of Attorney (EPA)

Being able to appoint a person to make important decisions on your behalf in the event of illness or accident can give you and your loved ones peace of mind for the future. For anyone who has already made provision for this in previous years, you may have in place what’s known as an Enduring Power of Attorney (EPA). However, the EPA preceded the Lasting Power of Attorney (LPA) that was introduced under the Mental Capacity Act 2005.

Below we look at the effectiveness and scope of EPAs and how these differ to LPAs, including whether you should now replace an existing EPA with an LPA.

What is an Enduring Power of Attorney?

Prior to 1st October 2007, when the 2005 Act came into force, an individual could use an EPA to appoint someone they trusted, typically a friend or relative, to be able to deal with their general property and financial affairs if needed. This could include giving that person the authority to make bank withdrawals, collect benefits or a pension, pay bills or even sell their home. However, following the introduction of the 2005 Act, LPAs have now replaced EPAs.

Still, even though the Enduring Power of Attorney has been gradually phased out, a properly executed EPA in the prescribed form that pre-dates the 2005 Act coming into force should still be valid — although it may not give you the same flexibility and benefits as an LPA.

How does an EPA differ to an LPA?

Both an EPA and LPA are legal documents that give another person or persons (the attorneys) the authority to make certain decisions on behalf of the appointing individual (the donor) in circumstances where the donor needs help or is no longer able to make their own decisions.

However, any existing EPA will only cover decisions about a person’s property and finances. As such, the most important distinction between an EPA and an LPA is that the LPA can also include the power for your appointed attorney(s) to make important decisions about your health and welfare. This can include things like your day-to-day care, where you should live and even life-sustaining treatment. In this way, the 2005 Act increased the range of decisions that people can authorise others to make on their behalf.

Should I replace my EPA with an LPA?

Provided any existing EPA has been properly drafted and met the legal requirements upon execution, this should still be valid. As with a Lasting Power of Attorney, a valid EPA allows an attorney to make decisions even if the donor lacks capacity to manage their own affairs.

An EPA can be used before someone loses their mental capacity with the donor’s permission. It can also be used after the donor has lost the ability to make their own decisions, as long as the EPA has been registered with the Office of the Public Guardian.

However, if you want someone to make decisions about your personal welfare in the event that you lose the ability to make your own medical and care decisions in the future, you will need to make an LPA whilst you still have the capacity to do so. You will also need to substitute any existing EPA with an LPA if you're looking to replace your appointed attorney(s), or an attorney is no longer able to act on your behalf.

By planning ahead, and by securing professional help to put in place the power for your attorney(s) to manage decisions about both your financial affairs and personal welfare, you can significantly lessen the emotional strain on your loved ones if the worst should happen.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

The legal meaning of lacking mental capacity

If you’ve been informed that a loved one no longer has mental capacity, perhaps following an unexpected illness or injury, this can be an emotionally fraught time where important decisions may need to be made about either their immediate or long-term care.

By understanding what it means when someone lacks capacity, and how this decision is reached by healthcare professionals, this can help to prepare you for how the diagnosis will affect your loved one and how their best interests can be safeguarded moving forward.

What does lacking mental capacity mean?

The Mental Capacity Act 2005 sets out the legal framework of how those working with or responsible for caring for someone who lacks capacity should act and make decisions on that person’s behalf. Under the Act, an individual lacks capacity in relation to a matter if: “at the material time s/he is unable to make a decision for himself/herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

As such, a person who lacks mental capacity is someone who does not possess the ability to make a particular decision for themselves at the time the decision needs to be taken. This reflects the fact that someone may lack capacity to make some decisions, but will have capacity to make others. For instance, they may be able to make minor decisions about everyday issues such as what to wear or eat, but unable to make more significant and complex decisions about say, financial matters or medical treatment. 

As a result of illness or injury that causes their capacity to change, a person may also lack the ability to make decisions at a certain time, yet be able to make that decision at a later time. 

How is lacking mental capacity decided?

Having identified whether an individual suffers from an illness, injury or other issue that could cause the person to lack mental capacity (the diagnostic stage), the healthcare professionals tasked with deciding if someone lacks capacity will then need to consider the individual’s ability to make certain decisions for themselves (the functional stage). 

A person will be classed as unable to make a decision for themselves if they’re unable to:

•   understand the information that's relevant to a particular decision

•   retain that information for as long as is necessary to reach a conclusion

•   use or weigh that information as part of the decision-making process, or

•   communicate their decision by talking, using sign language or by any other means.

How should someone lacking mental capacity be treated?

Given the potential impact of decisions being made on behalf of those who lack capacity to make specific decisions for themselves, the legal requirements under the 2005 Act are underpinned by the following five key principles:

•   An individual must be assumed to have capacity unless it is established otherwise

•   An individual must not be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success

•   An individual must not be treated as unable to make a decision merely because they’ve made an unwise decision

•   Any act done or decisions made on behalf of an individual who lacks capacity must be done in their best interests

•   Anyone taking any action or making any decisions on behalf of an individual who lacks capacity must first consider any options that are less restrictive of their rights and freedoms.

The purpose of these statutory principles is to balance a person's right to make their own decisions with their right to be protected from harm if they lack capacity. If, however, you have any concerns about decisions that have been made by healthcare professionals on behalf of a loved one, including the outcome of any mental capacity assessment or what is in that person’s best interests, you should seek expert legal advice immediately.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

How do you get an annulment?

There are two ways to legally bring a marriage to an end: a divorce or an annulment. Although annulments of marriage are relatively rare in the UK, they are legally possible. Essentially, an annulment acknowledges and declares that the marriage has become or was always invalid, i.e. that it no longer or never validly existed. In contrast, a divorce is a legal process in which a valid marriage is dissolved. While a divorce legally ends or dissolves a marriage, an annulment can be used to declare the marriage null and void, as if the marriage never existed. 

Even though the outcome from obtaining a decree of nullity or decree absolute is broadly the same, such that you and your former spouse are each free to re-marry or enter into a civil partnership, the grounds for getting an annulment or a divorce are entirely different. This means that you don’t necessarily get a choice between applying for an annulment or a divorce, where you can only get an annulment in very limited circumstances.

In order to annul a marriage, you or your spouse must have either have lived in England or Wales for a period of no less than one year or had a permanent home in England or Wales for at least six months. You would also need to show either one of the following: 

•   The marriage was not legally valid in the first place, ie: it was ‘void’

•   The marriage was legally valid but meets one of the criteria that would make it ‘voidable’

A void marriage, ie; one that will be considered by the Court as having never taken place, are the ones where, for example:

•   You are closely related to the person you married

•   You or your ex were under the age of 16 when you married

•   You or your ex were already lawfully married or in a civil partnership when you married.

If a marriage was never legally valid, the law says that it never existed. That said, you may still need the paperwork, ie; a ‘decree of nullity’, to prove this if you want to get married again. In contrast, a marriage that is voidable, ie; that will be considered by the Court as capable of being annulled, will be treated as if it had existed up until a decree of nullity is granted. These are the ones where, for example:

•   The marriage has not been consummated owing to either the incapacity or refusal of one party to consummate it, although this does not apply to same-sex couples

•   If one of you did not properly consent to the marriage, such as where you were forced into it or because you were not of sound mind

•   If one of you had a sexually transmitted disease at the time of the marriage

•   If the woman was pregnant by another man at the time of the marriage

•   If either party is in the process of transitioning to a different gender, or one of you did not know that the other person had an acquired gender at the time of the marriage.

Unlike divorce, where you have to wait for a year, you can apply to have a marriage annulled as soon as you get married, leaving you free to start over more quickly. However, annulments are a complex and misunderstood area of law, especially when it comes to dealing with financial separation, so specialist legal advice should always be sought.  

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.