How can I protect my assets before filing for a divorce?

How can I protect my assets before filing for a divorce?

Part 3: Divorce in Finland – How can I protect my assets before filing for a divorce?

In the first part of the blog series – Divorce in Finland – we discussed how to initiate divorce proceeding and in the second part we discussed what the process is when you have children with your spouse. In this third part we will discuss how you can protect your assets before filing for a divorce.

Please note that these posts are written on a very basic, general level. Should you need more specific help in your specific situation, you may contact Sanna Svahn by e-mail or make an appointment with her.

Part 1: Divorce in Finland – 6 things to take into account

Part 2: Divorce in Finland – What happens when you have children?

Part 3: Divorce in Finland – How can I protect my assets before filing for a divorce?

Part 4: Divorce in Finland – How is our matrimonial property divided?

Having read about Melinda and Bill Gates’s recent divorce in the papers, we thought a refresher on how to protect your assets under Finnish law before filing for divorce might be necessary. The following simple steps can help you get organised and prevent you from losing significant amounts of assets in the unfortunate case of a divorce.

1. Pre/postnuptial agreement

The first and best option is always to make a prenuptial agreement before getting married. If you are already married, it is also possible to make a postnuptial agreement.

In both agreements it is absolutely essential that the agreement is registered at the DVV. If you are considering a postnuptial agreement, it must be registered before your divorce is filed at the court.

It is important to note that a pre- or postnuptial agreement only covers the scope of the marital right and in which cases the marital right exists (divorce, death or both). Accordingly, it is NOT an agreement on how your property and assets are to be divided after the dissolution of marriage. This is an unfortunately common misunderstanding.

In the agreement you can then agree on which specific property or all property, is to be excluded from the marital rights. The most common option is to exclude rights to all property in case the marriage dissolves in divorce and to grant rights to all property in case the marriage dissolves in death. You should understandably always consult your attorney on the most appropriate option in your case.

2. Will or gift certificate deed

If you inherit assets or property through a will or receive property by gift deed, it is possible to exclude marital rights in the relevant documents/deeds.

3. Marriage settlement agreement/preliminary agreement

It is possible to make a marriage settlement agreement at any point during the marriage before initiating divorce proceeding before a court. However, under Finnish law, a marriage settlement agreement made before the initiation of divorce proceedings will only be a non-binding preliminary agreement. For a preliminary agreement to become binding, it has to be validated again with signatures of both parties after the initiation of divorce proceedings.

If a preliminary marriage settlement agreement is made at an early stage of the marriage, it should not be too specific, but rather only include the outlines of the agreement and agreements on the contentious matters. This way you can ensure that the preliminary agreement will not become outdated very quickly. It is also important to check that a preliminary agreement has not become outdated in the eyes of the law.

In a preliminary agreement it is possible to exclude assets from marital property, but this exclusion is not binding towards external creditors. Therefore, marital rights should rather be excluded by making a pre/postnuptial agreement.

Separate assets and bank accounts

If marital rights have been excluded on any property or assets, it is strongly advisable to keep those assets separate from any matrimonial property. This will help immensely in the classification of such property later on and save you a lot of time and effort. If the property has been mixed with the matrimonial property, your spouse can quite easily be viewed as having matrimonial rights to an asset due to the fact that the excluded assets cannot be identified with enough certainty.

Especially if you have an all-excluding agreement it is advisable to keep separate bank accounts during the marriage to make the separation of assets easier in case of a divorce.

Business ownership

If you own shares in a company, any dividends and other income received from the company should be kept in a separate bank account, even if they are part of your matrimonial property.

It is also possible to insert a clause in the company’s shareholder agreement by which you can determine a right to redeem, by which a specific shareholder or the company itself can redeem the shares of the company for predetermined redemption value. This allows the redemption of shares that have ended up as property of an outside party through the division of property as a consequence of a divorce.

Other registered ownership

Proprietary rights are determined by registered ownership. In other words, if you are the registered owner of a piece of property, it will be seen as your property. It is therefore, of utmost importance to make sure that all the property that is yours is also registered in your name or, in the case of co-ownership, in the accurate share that the property was funded. Unfortunately, property is often registered as 50/50 ownership when in reality the other spouse has funded the purchase with a much larger share.

If you have already registered a property in a 50/50 share, you can draft a written agreement on how the ownership was intended to be at the time of the purchase. Alternatively, you can during the marriage change the ownership in the relevant register. You may have to pay stamp duties on the change.

Immovable property

Immovable property, such as household items are seen as jointly owned. This means that even if you have paid for all furniture, your spouse will be seen as the joint owner. To avoid this, you can keep the receipts or keep a file of bank statements indicating that you have paid for the items from your account.

How to contact us?

You may book an appointment with our managing director, attorney Sanna Svahn or you may contact her by email.

In the next blog post in this series, we will explain how matrimonial property is divided.

Applicable laws

Marriage Act

 

 

 

 

 

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