Divorce, joint tenancy and how to prepare for the unexpected

A new case has come to light that is important for anyone going through family separation who owns a property jointly with their partner– as well as the practitioners advising them. What follows is a more complicated post than usual and I’ve done my best to simplify it.

For all those unacquainted with Section 36 Law of Property Act 1925 may I first suggest reading my initial post on this subject three years ago, which looked at severance of joint tenancy and will help you to better understand the case I am about to cover.

I explained how in English law, property is jointly owned in one of two ways: as “tenants in common” or “joint tenants”. These are tricky concepts to understand and law students have to spend long hours trying to do so! In the interest of straightforwardness, it relates ultimately to the difference it makes to the survivor when the first party dies.

If the property is owned as “joint tenants” on the death of one party, the survivor automatically inherits the deceased’s share. If the property is owned as “tenants in common” the deceased’s share will pass to their estate and will be inherited by the beneficiaries of the estate, not the surviving co-owner. So this technical difference, which most people don’t have a clue exists in law, could mean the survivor will lose out on a lot of money and also being obliged to sell the property to pay out any beneficiaries. Sometimes it is inheritance tax efficient for spouses to buy property jointly as tenants in common, but at the same time they will each make a will and if so advised, leave their share to their surviving spouse in any event. You can get further advice from a specialist in that area, which I am not.

Where parties are separating (whether married or not), and they own the property as joint tenants, practitioners know this subject should be reconsidered. Either party may sever the joint tenancy if they wish, by serving a notice on the other that is registered with the Land Registry. Thereafter they will continue together to own the property as “tenants in common”.  The decision to sever usually occurs because the person concerned no longer wishes the other to automatically inherit their share of the property, on the off-chance they may die before the property dispute has been resolved either by the court or between themselves.

Severance does not affect any final division of shares in the property that may ultimately be agreed or ordered by the court. It is a “just in case” proviso because, a death during a divorce or cohabitation dispute is very rare. But it happens.

The recent case of Davis v Smith (2011) EWCA Civ 1603 was heard before the Master of the Rolls and Lord Justices Kay and Sullivan. It concerns a situation in which the divorce process was on-going, and whether a joint tenancy was severed – even though a notice of severance was never served. Despite the fact that it arose out of a divorce, this type of case is not decided by the family courts. Like Kernott  v Jones, it is strictly a property matter and therefore a case for the Chancery Court with all the attendant costs.

On the surface the judgment appears quite dry, one that is easy to pass over, although it actually deals with chilling circumstances. In giving his judgement Lord Neuberger detailed the facts of the case, which like Kernott v Jones relates to two ordinary, everyday folk; this couple lived in a former council-owned property in Suffolk until divorce proceedings began and the husband left home. He then refers to the “untimely” death of Mrs Smith, who “apparently…fell down the stairs”.

Before the death of Mrs Smith, the parties had been in negotiations through solicitors. Both of them intended to serve notice of severance, but neither did so. So if the joint tenancy had not been severed, Mr Smith would have inherited the entirety of his late wife’s interest in the house despite their separation and the divorce proceedings. He argued it had not. The executors of Mrs Smith’s estate argued that it had.

The law relating to severance is set out in the leading case of Burgess v Rawnsley (1975 Ch. 429), where Lord Denning, Master of the Rolls, giving judgment referred back over a century to another case called Williams v Hensman (1861) 70 ER 862. In addition to the service of a notice under Section 36 (2) Land Property Act 1925, severance of a joint tenancy can also be effected in three other ways:

1.      A certain type of act by either party

2.      By mutual agreement

3.      A course of dealing.

Thus in accordance with the law, and with reference to the comment of Lord Denning that “the thing to remember today is that equity leans against joint tenants and favours tenants in common”  Lord Neuberger, the present Master of the Rolls, went on to carefully examine all the facts and ultimately reached the conclusion that the joint tenancy had been severed, through their course of dealings, and upholding the decision of the lower court. Mrs Smith’s interest did not pass to her estranged husband but instead passed to her estate.

It was a close run thing, since as Lord Neuberger remarked: “Neither the proposal nor the agreement to put the house on the market nor even the acceptance of a subject to contract offer could have severed the joint tenancy on their own. Even a sale could have been said to have been entirely consistent on the face of it at least with the joint tenancy continuing and applying to the proceeds of sale…what passed between the parties…went further than that”.

Lord Neuberger made reference to the detail of correspondence and the content of a meeting, as well as the advice both parties were receiving through their solicitors, and the “inevitable” application of a 50/50 split of assets on the facts of this particular case. The judge also made reference to the unequal distribution of the net proceeds of a policy in favour of the wife given the inevitability of the split in relation to the net proceeds of sale of the house. He added it was appropriate only for the course of dealings between the parties to be considered, and not “what went on in a party’s mind”. Given all those circumstances, he considered the joint tenancy to have been severed.

To what extent might this affect a case in which readers are involved? To be certain of your situation if so advised, you should sever the tenancy by notice and in any event, you should make a will.  Making a will is not easy either, and I suggest taking good legal advice beforehand. Please don’t think you can simply do it yourself.

To leave it  all open to argument on the basis that “it will never happen to me” is to risk an unnecessarily high tax bill, a nasty fight in potentially tragic and unforeseen circumstances and, at the very least, a substantial bill of costs which may significantly deplete an estate.

I would also refer any concerned readers to a point made in my original post. Even if it is too late, if a death has occurred and the joint tenancy is ultimately found to have been severed, an application can still be made in appropriate circumstances under the Inheritance (Provision for Family and Dependents) Act 1975.

But with it the conundrum can start all over again.

352 comments

Philomina - January 20, 2012 at 4:19pm

I am going through a divorce and recently needed to undergo major surgery. I asked my solicitor about severing the joint tenancy – as I wanted to make provision for my daughter – even going so far as to show her a print of your article. As she said this was not needed, I was wondering what the counter arguments are for not doing as you generally propose above?

Marilyn Stowe - January 23, 2012 at 11:57am

Hi Philomina
I am wondering whether you definately do own the property as joint tenants?
If you do then I am surprised. Major surgery carries an obvious life threatening risk.
The downside of not severing the joint tenancy is that if your partner predeceases you before a court order is made, his share will not automatically pass to you either. However under the Inheritance (Provision for Family and Dependents Act) 1975 you could still make a claim.
I think you should ask your solicitor to put her advice in writing so you can consider the position more fully.
Best wishes
Marilyn

cassandra - January 25, 2012 at 11:42am

Hi Marilyn

My grandparents owned a property together. They divorced and my grandmother left the marital home with my mother and changed her will to leave her half-share to my mother. I don’t think anything official happened with the property. My grandfather continued to live in the property, eventually selling it and moving to another property. My mother wants to protect her half-share of the original property. Can this by done by application to the land registry for arestriction placed on the title of his new home to the value of half of the proceeds of sale of the original property? My mother thinks her father will not leave her anything in his will.

Any advice you can give would be much appreciated.

Cassandra

Jeff Childs - February 17, 2012 at 12:31pm

Hi Marilyn

Would a divorce sever a Joint Tenancy or would it continue until the death of one of the joint tenants?

Rgds Jeff Childs

Paula - March 18, 2012 at 9:55pm

I have a joint morgage with my husband who walked out before Xmas,he is renting out the house and not keeping up the morgage payments.I am a carer for 2 autistic sons so not able to work,I am not able to claim income support/housing benefit/council/legal aid due to having a joint morgage,would severing a joint tenancy help me to be able to claim the benefits I’m missing?

Marilyn Stowe - March 19, 2012 at 10:36am

Dear Paula
I am sorry but what you write just doesnt make much sense to me and in order to advise you properly a solicitor will need full details of the entirety of your financial details.
You really do need to seek legal advice. You say you arent entitled to legal aid, but many solicitors do operate free advice schemes within their offices and you need to find one if you cant afford to pay.
I think however, given it seems there are two homes here to consider, rental income and presumably his earned income as well, it is well worth paying for legal advice as it could help you out of this shocking situation.
Severing the joint tenancy will mean that if either of you were to die, your respective shares would no longer automatically pass to the other, but as you leave your share by will. So if you do intend to sever the joint tenancy you should make a will at the same time.
Best wishes
Marilyn

maurice - June 1, 2012 at 10:35am

My ex-wife has served me with a joint tenancy, although we live next to each other and has been friends since the break-up in 1990 my question is she has been suffering from terminal cancer and sadly died The joint tenancy severance was put through my door by her solicitor after she had died and not handed to me. is this legal?

Dave Mite - June 24, 2012 at 6:11pm

I have split with my partner after 20 years but it has got to the stage where we hate each other.
I still live with her but I went away for two weeks and some how she has contacted the housing association and terminated our joint tenancy and changed the locks. I have had no formal letter from the housing and after all that they have given her a new tenancy contract. How can that happen and what can i do. Are the housing at fault.

rhebha - September 14, 2012 at 4:35am

iI am divorcing my spouse I am not living in our joint owned property he is untill it gets sold he isnt co operating as he doesnt want to sell he wants me to just go away what should i do or what will the court do to protect my half

Marilyn Stowe - September 14, 2012 at 9:53am

Rhebha
Thanks for your comment.
I think you should speak to your solicitors and take advice from them as to what you should do. You may need to be more proactive! You could for example apply to the court for an order that you take control of the sale of the property. You need to make sure that the solicitors and estate agents instructed are aware of your existence and look to you for your instructions.
Regards
Marilyn

j - November 18, 2012 at 3:17pm

my sly husband has changed our home from joint tennant to tennants in common he didnt even say he was about to do this can i now force a sale on the house

Tracy Bradlley - October 30, 2015 at 8:12pm

I would like to know the outcome of this question..

George Morrison - February 1, 2013 at 5:06pm

Hi Marylin
Does the Trusts of Land and Appointment of Trustee Act not affect the rights of tenants in common? I understood one tenant in common or creditor of such could apply to the court for an order for sale of the whole property to obtain payment of the debt even if the other tenant in common disagreed and was thereby thrown out. Am I wrong?
George

Marilyn Stowe - February 1, 2013 at 5:26pm

Hi George
If property is jointly owned it is subject to a trust for sale and may be sold at the request of one of the owners. If the other owners wont agree then an application can be made to the court for a sale.
It doesn’t matter whether they own as tenants in common or joint tenants. That is relevant on death as to how their share will pass either automatically to the other if joint tenants or as they leave it by will if tenants in common.
Takes me back to my Land Law days at Uni!
Regards
Marilyn

George Morrison - February 1, 2013 at 5:59pm

Hi Marilyn
Yep, but can an order for sale be obtained by a creditor against the wishes of the owner who does not want to sell?
Which uni and when?
George

Marilyn Stowe - February 1, 2013 at 6:18pm

Hi George
Yes it can. Leeds 70s a long time ago!
Regards
Marilyn

George Morrison - February 1, 2013 at 6:57pm

Hi Marilyn
I joined on 3/9/50. I was admitted in December 1974. (I am not very bright.)
Now that is a long time ago. When solicitors took on anything and everything.
The days of Rylands and Fletcher and Gibsons conveyancing and Cheshire’s Land law. The LPA and before Land registration.
Did you ever read Topham’s Land Law? I found it incomprehensdible and he was the most obnoxious judge I ever appeared before.
Ahhh! Those were the days.
Regards
George

Marilyn Stowe - February 1, 2013 at 8:03pm

Hi George
I’m thrilled! I’m a spring chicken.
Keep writing in.
Very best wishes
Marilyn

Ruth K - February 23, 2013 at 12:18am

can i change from JOINT TENANTS to TENANTS in COMMON without my partners permission.

heather patters - February 24, 2013 at 9:45pm

Can my father serve a letter of severance on my mother and go for tenants in common even though my mother has dementia and wont understand. I wish we had sorted this out years ago but have we left if too late?

Goo - March 4, 2013 at 12:43pm

I think my case is one to consider. My husband and I divorced due to his alcoholism and associated behaviour. He recently died of his affliction, before the property could be settled. Now his estranged family are coming out of the woodwork trying to make claim to the house that is still in “joint tenancy” despite the fact that he took savings from our joint account to the value of any equity, and despite the fact that the house is there for the benefit of our children. I have been paying the mortgage on my own for nearly two years with only the benefit of five pounds a week in child maintenance. How would this play out in court?

Marilyn Stowe - March 12, 2013 at 5:57pm

Dear Goo
You could contest the claims as you have a claim for you and your children under the Inheritance Provision for Family and Dependents Act 1975 against his estate in any event.
See a solicitor because there is so little information given I cant be specific.
Regards
Marilyn

Dave - March 12, 2013 at 8:53pm

My wife died recently, and our house is owned as 50/50 tenants in common. There are children from previous marriages, and we both wanted the protection that if the surviving spouse re-married, the family from the first marriage couldn’t lose their inheritance – all easy so far.
There is a cause in the wills to say that the survivor can continue to live in the house, and can even sell it and buy another, but a trust has to be set up, to continue to own a share.
The problem I have is that the house is approximately 80% mortgaged, and I will now be paying the mortgage.
Do my wife’s children (the trust) own 50% of what the house is worth (ignoring the mortgage) or 50% of its nett value? If it’s the nett value, does this mean their share is increasing in value by me paying the mortgage (in which case I might be best selling, settling up with them now, and then starting again in my own right.

Marilyn Stowe - March 13, 2013 at 12:04pm

Dear Dave
Im not in a position to advise you but I have a few thoughts and would suggest you take the will to a solicitor for its exact wording to be explained to you.If it does put you at a disadvantage going forward I think it may be possible for discussions to take place so as to ensure that this is resolved sensibly by varying the terms of the Trust .
One possible and immediate solution is as you say, if you can afford it, to buy them out now, especially as house prices are low. Or sell the house.
Check the wording first and consider all your options which might even include a claim against your late wife’s estate under the Inheritance (Provision for Family and Dependents) Act 1975.
Best wishes
Marilyn

Elizabeth - April 11, 2013 at 2:16am

Is this a free service or do you have to pay for any advice given?

Marilyn Stowe - April 11, 2013 at 7:43am

Hi Elizabeth
I always try and reply to readers and yes it’s free of charge.
Regards
Marilyn

Elizabeth - April 11, 2013 at 2:19pm

Hi Marylin, 
thanks for your reply. I’m hoping that you could offer some advice.

My partner separated from his wife in 2010. They married in 2008 after being together for 2 years, after they married he agreed to put her name on the mortgage and the deeds to the house. He has owned the property since 2009. They have one biological child together who is now 5 years old and his estranged wife also has a son aged 12 who my partner raised as his own whilst they where together. His estranged wife never paid a penny into the property whilst they where together and she refused to work meaning that my partner supported her, the children and paid the mortgage  throughout the whole time that they where together. in 2010 he moved out of the property and rented an apartment, whilst doing this he agreed to pay his estranged wife a monthly payment of £500 directly to her bank account to help pay the £750 a month mortgage, this continued up until march 2012. In September last year he discovered that his wife had forged his signature in 2009 to change the mortgage from repayment to interest only, reducing the payments to £330 per month meaning that thousands of pounds had not been paid off the mortgage. The police where involved to investigate matters and no action was taken because they couldn’t prove it was actually her that had forged his signature – even though it was not at all possible for my partner to have signed the forms at that time , the building society who hold the mortgage have said that the signatures that they have are a ‘satisfactory match’ to my partners signature. 
In between this, his wife has put the house on the market twice without my partners knowledge or consent, she has had him arrested countless times with allegations of harassment, assault and abuse – even when he’s not been in the same country as her she has had the police at our door investigating her ridiculous claims! She has even tried to get him fired from his job by ringing his employers and making absurd allegations about him. It’s more than obvious that she wants him out of the way so that she can take the house from him and to get as much money from him as possible. She’s even sold his belongings that where left at the property, such as his TV, DVD player and all his work tools!
At present she is demanding through her solicitor that he should sign over the house to her otherwise she wants £50,000 from the sale of the house with all other fees to be paid for by my partner (there is only £60,000 equity in the property) 
Due to the solicitors fees and various other costs that have been paid out by my partner trying to fight for access to the children and the CSA payments that he is paying, he is unable to pay for a solicitor to fight his corner. My partner and i also have a 17 month old daughter together, this seems to be the main bone of contention for my partners ex. She is absolutely determined that my partner should get virtually nothing at all from a property that he’s owned for fourteen years. We are suffering as a result of her behaviour, we are practically living hand to mouth because of the financial situation that she has put us in. My partner works for a living and therefor is not entitled to public funding, his ex has various different ‘illnesses’ which prevent her from working ( but not from partying and holidaying with her friends ) and this entitles her to public funding.
What can he do? Should he just sign the house over to her and give up? Or is there any way that he can fight this and get the 50/50 split that he wants from the property? He just seems to be trying to fight a losing battle at the moment, even though he is happy to offer her 50% from the sale of the property she just will not accept this!

Any advice that you could offer would be greatly appreciated. 
Many thanks.

Marilyn Stowe - April 12, 2013 at 4:32pm

Dear Elizabeth
The court would consider both parties requirements, giving consideration to the factors of s25 Matrimonial Causes Act 1973 and in particular to the needs of the parties and all the children of the family and then apportion the assets accordingly. Reasonable requirements include housing for both parties and income for both parties as a starting point.
There isnt enough detail in your question to advise further. I would suggest your partner does take legal advice. It sounds as though quite a lot of money is at stake and its short sighted not to do so.
Regards
Marilyn

Graham - April 13, 2013 at 10:19am

When I bought a house with my then girlfriend she put more equity into the house and we had a tenants in common agreement drawn up. Now that we are married does this still apply? Or how do we get it changed?

Marilyn Stowe - April 16, 2013 at 12:59pm

Dear Graham
If you own a property as tenants in common then if either of you dies that person’s half share will pass as it is left by will. A will is automatically revoked on marriage unless it specficially states the will is made in contemplation of marriage. So you may both need to make new wills.
The tenancy in common and any accompanying declaration of trust which presumably sets out the different percentages can be varied to joint tenants by agreement in which case on death your respective shares will automatically pass to the other and on sale you will each get 50/50.
On divorce however, whether you own as joint tenants or tenants in common the court will take into account the differing contributions to the property by you both.
Regards
Marilyn

Simon Hayward - April 17, 2013 at 4:48pm

Dear Marilyn,

My father passed away two and a half years ago, and his house was left to me and my brother . We are joint tennent and in my father will it stated that we can not sell the house whiles either of us was living there for two year, at the moment we both live there and have been doing the house up to sell , my brother told me he does not want to sell but I do! It’s been over two years now, he does not want to buy me out , can I make him sell up as I want my share to set up home else where , he told me I can not make him sell up

Regards Simon

Marilyn Stowe - April 19, 2013 at 1:59pm

Dear Simon
You can alter the joint tenancy if you are definately owning as joint tenants, to tenants in common and then your share will pass as you leave it by will.
You can also apply for an order for sale of the property. If one of you wants to sell then by law it must be sold.
Regards
Marilyn

maggie - April 20, 2013 at 7:46am

I have partitioned for divorce. My husband has been cooperative with regards to the divorce. However he is dragging his feet about putting yhe house on the market. He wants to stay there but cannot afford to buy me out. The house is jointly owned but I left there to look after y son who had a stroke and because he was constantly moody. I always intended to move back in the spring with my son as soon as the weather got warmer as it has solid fuel heating and he did not chop or season the logs (I suspected this was intentional). The last few times I have been out there he has had the chain on the door and has asked me to give him notice of when I intend to go out there. I believe he is planning to prevent me from returning. I am sure that the house will not sell if he is living there on his own. He has no incentive to move out or sell the house. Am I able to move back into the house ?

Marilyn Stowe - April 25, 2013 at 12:30pm

Dear Maggie
You are entitled to move back into your home but I suspect you will need some additional help perhaps with a non molestation order to prevent him assaulting you and preventing you from moving back in. You also need to get a financial order in your favour and get an order dealing with the sale of the house to make sure it sells. I think you need some personal legal advice from a local solicitor.
Best wishes
Marilyn

laura - April 22, 2013 at 5:22pm

hi i have lived in my housing association house since 1990
the tenancy is in both my name and my ex husbands whom i divorced in 1994 and and me and my three children have not seen or heard from him since ! you probably find this hard to believe as does the housing assosiation but this is true !anyway to cut a long story short two of my children have now left home and im not in good health and due to recent benefit changes i have to pay bedroom tax on my spare bedroom .
im on income support but because my daughter is working my rent is calculated on her wages so what with the bedroom tax added on im paying nearly full rent .
i am very interested in downsizing to a two bedroom property with a smaller garden as mine is large and hard work for me to keep tidy , but when i asked the housing association about this they said i would have to apply to my local court to get my ex husbands name off the tenancy ? and i would have to seek legal advice and they did not know how long this would take . but surely if i show my divorce papers this proves my husband and i am apart ! i know my ex would not want any claim on a council house plus we parted on bad terms and there is no way he would cooperate even if i did track him down .it just seems so unfair that i cannot move house as a smaller one would be more affordable and practical but someone i have not seen for nearly 20 years is preventing this .i have never been inside a court and have no money to pursue this how do i stand ?
thank you laura

Graham - April 29, 2013 at 11:59am

I have been sent a Notice of Severance of Equitable Joint Tenancy which includes the words: ‘I (i.e. my ex partner) shall hold the property on trust for sale as tenants in common in unequal shares as if there had been an actual severance.”

Whilst I am not resisting the sale, I want to ensure that my 50/50 share of equity is protected.

From the Land Registry site it seems that the change in tenancy does not require my consent . . . only her signed copy and proof of delivery to me.

Should I a) register my non-agreement with the Land Registry; and/or b) acknowledge receipt of the letter but not sign the certified copy as requested; or c) confirm my non-acceptance back to her solicitor or d) ignore the letter.

Thanks very much.
Graham

Marilyn Stowe - May 9, 2013 at 2:24pm

Dear Graham
I think you should take legal advise because I don’t understand the reference to unequal shares. Has there been a typo? Notice of Severance usually means each of your share will no longer pass to the other automatically on death. It doesn’t affect your share. So take legal advise to check and thereafter I expect you will be asked to sign the document as amended and make a will detailing where your share will go.
Regards
Marilyn

Tom - May 2, 2013 at 6:55pm

Me and my ex partner bought a house 18 months ago. We weren’t married and were are “joint tenants” on LandRegistry. We contributed different shares to get a deposit for the house. Verbal agreement was that I carry on paying everything else like bills, council tax and etc. We had a lodger who helped us with the rent, but I was paying everything else to cover monthly mortgage payments. Recently we split up, and now we are selling the house. As a joint tenants, will it be 50/50 or the court has to decide? I did put less for deposit, but I paid everything else as agreed whilst living with her… Is there any stated cases that I can look at? She said that she is going to get much more then I, is it true?

Marilyn Stowe - May 10, 2013 at 5:02pm

Dear Tom
This is not family law, but property law. In general if property is purchased jointly then the proceeds of sale will be divided jointly unless there is a declaration of trust specifying the division or the court alters the amount having heard all the facts but based on complicated areas of property law. For an argument to succeed it has to be compelling.
You need to see a solicitor for more advise, and take with you a copy of the original purchase file and also a copy of the Office Copy Entry relating to the property from the Land Registry which will be helpful.
Regards
Marilyn

Douglas Miller - May 4, 2013 at 11:10am

Hello Marilyn.
Please can you tell me if it is possible for me to sever the joint tenancy on the matrimonial home so as it can be placed on the market for sale. We are divorced but she refuses to leave the matrimonial home,

Marilyn Stowe - May 10, 2013 at 4:49pm

Dear Douglas
This is two points. Severance affects how the property will pass in the event of a death of either of you. Once it is severed, it will pass as you direct in your will. An order of the court is required to obtain a sale and I assume there has been a final order determining the financial settlement. If not you need to apply but the court can adjust your respective interests in the property. See a lawyer to get specific tailor made advise.
Regards
Marilyn

Ruthie - May 8, 2013 at 2:41am

Ms Marilyn,
My father is 83 going thru joint tenancy divorce from wife #5 whom is 56. He has had a stroke, colon cancer & in really bad health & should be in a nursing home for the greater good. She’s rushing the issue which suggests its not in his interests at all. She lives apart with boyfriend & I am oldest daughter from his 1st marriage concerned in his welfare but unable to care for him myself. I’m sure his time here is limited but I prefer to see him have hot meals & clean sheets at nusing home rather than her get his home to sell once he’s passed. The home is paid in full, but creditor are after her, & she has totally neglected his needs the past 4 yrs, therefor the joint tenancy is her idea. Any advice, I’m clueless! Kindest regard

Marilyn Stowe - May 10, 2013 at 5:15pm

Dear Ruthie
Your father needs to see a solicitor and put his affairs in order.
Regards
Marilyn

shining star - May 8, 2013 at 1:43pm

Hello Marilyn
Similar to Graham on April 13th, I sold my home in a few years ago to pay a huge deposit on a house with my new husband (who contributed nothing to the deposit). We took the remainder of the mortgage in joint names with a tenancy in common agreement to protect my finances should I die or if we split. We are parting ways now (domestic abuse and possible adultery on his side) and he wants me and my child out, dividing up 50/50 everything including my pre marital & post house sale savings!! Solicitor tells me this is possible! I thought I had protected mine and my child’s future?? Have I been badly advised?

Marilyn Stowe - May 10, 2013 at 5:13pm

Dear Shining Star
Without more facts on your case I cant advise you however non matrimonial assets can be ring fenced from division once reasonable needs have been met. Your needs and your contribution could well outweigh his and the court could order accordingly.
Regards
Marilyn

Barbara greenwood - May 12, 2013 at 6:49pm

My partner and I have ended our relationship, we bought the bungalow between us, no morgage. And went tenants in common . In our will it states either surviving partner has 5 years to sell the property and move.but now the relationship has ended , he is demanding we sell.
We have taken out a lot of equity on the bungalow, so there is not enough left to buy property.also I am 73 years of age with a bad heart we have lived in the bungalow for 8 years.
I cannot cope with the stress of moving from my home.
He says he can get a solicitor to get me to sell …how true is this .regards barbara .

Marilyn Stowe - May 12, 2013 at 8:02pm

Dear Barbara
In law a property owned by two or more people is subject to a trust for sale which means that if one person wants to sell the court will order a sale. However the relevant law is called The Trusts of Land and Appointment of Trustees Act 1996 and under section 13 the court does have power to postpone the sale. So your partner is incorrect. The best thing to do is try and sort it out amicably.
Best wishes
Marilyn

Angela - May 13, 2013 at 6:48pm

Hi do I have thew right to sell my property that is jointly owned by myself and my ex husband of 11 years. He dissappeared the weekend before we were to see a solicitor in regard to signing the house over to me. I have since searched for him in many different ways with no luck. He has not paid a penny to the mortgage and the house has gone into disrepair due to not being able to remortgage. I have also found that he has changed his name.

Marilyn Stowe - May 15, 2013 at 10:12am

Dear Angela
The Judge has power to sign the deed which will transfer the property to you, if this was done after a court order. Or, you need to make an application to the court for a transfer of property order if you havent done so already and then ask the Judge to sign the deed. The fact he has disappeared will not stop it all proceeding, the court will want to be satisfied you have made reasonable efforts to trace him.
I think you need a solicitor to help you and you could always offer to pay out of the net proceeds of sale.
Regards
Marilyn

Jane - May 16, 2013 at 8:36pm

My husband died and we are joint tenants can a credit company which he defaulted on make a claim he died penniless with no assets I have 2 children under 16 and they have told me they will request a charge on the property

Nick - May 17, 2013 at 7:32am

Over the last two years my Brother has become more and more opposed to my living in a property that we both own (Joint Tenancy), the property was passed onto us by our grandmother several years ago….

I am occupying the property while looking after my grandmother who is now 92. This is a source of annoyance for my brother because I live in the property rent free. However, I am running errands for my G/M all day who is now practically bed ridden and I am also suffering financially myself due to the location and limited opportunities in the area…if i wasn’t here, she admits herself that she would have to go into a home….

my concern is this, once my grandmother passes away, what rights do I have with regard continued occupation of the property…? It is my intention (with mutual agreement) to sell it ASAP and move on, I certainly don’t want to prolong this situation with my brother.

Does my brother have the right to ask (or expect) me to pay him rent, both our names are on the deeds and I don’t see any reason for me to pay rent to live in the half of a house that I already own, he is free to rent out his half (I would even offer to administer that for him just to keep the peace)

Jane PJ - May 22, 2013 at 6:09pm

This is such a helpful blog, thank you for it .
This is a question I would like to ask on behalf of a friend. She and her husband are divorcing after many years of separation. He has mental health issues and she and her daughter (just 18) both have health issues (there’s also a son of 21). The only disputed asset is the marital home. She has a decree nisi, but fears that they will not reach a financial settlement before it becomes absolute and that she’d then have to pay capital gains tax on anything he passes to her in a settlement. Is this so?
Her second problem is that she can’t even afford to heat the house properly – she’s on esa – and her daughter has Raynaud’s. A half share of the house (the least she would expect ) would enable her to reduce her costs in a cheaper place – but her husband’s lawyer is spinning out the question of his competency, and it could go to the court of protection. Is there anything she or her lawyer could do to to speed things up, especially because of the health issues. (She doesn’t think her lawyer is brilliant -otherwise I wouldn’t ask here -but she has got legal aid.) Thanks in anticipation for any response you can manage.

cris p - May 23, 2013 at 6:35pm

hi,my ex partner and i split up after 18 years,i bought a house in my name12 years ago and after 7 years put her name on the mortgage,after the break up she moved out and said i could live in the house until i choose to sell it,a year later (today)a solicitors letter arrived saying she wants the property put on the market,i am reluctant to sell at this time because of property prices,and wonder what happens next and the time period involved?

Lizzie - May 26, 2013 at 2:41am

Hi my husband recently passed away, he divorced his first wife in 2000 and they have been arguing since about a financial split of the formal matrimonial home, it reached impass 4 years ago when my husband was diagnosed with cancer. My question is, his will left his entire estate to me, but it would appear his divorce solicitor didnt severe the joint tenancy, does his first wife inherit his share of the formal matrimonial home or are there grounds for the estate to claim his share of the house. Thank you.

Jean - June 26, 2013 at 9:47am

I have moved out of my home while deciding whether to divorce my husband, and I am wondering how I can protect myself from any debts (store-cards etc) that he’s likely to run up in my absence. (I discovered yesterday that he’s just taken one out.) Since they’re probably secured on our jointly owned house I’m very anxious. Does it make any difference whether we’re tenants in common or joint tenants?

marina finch - July 5, 2013 at 1:13pm

Me and my ex husband are joint tenants on a council property im still living in the property but he won’t take his name off the tenancy ive spoke to my local council and they said they can’t help me and that he can come back at anytime because he has rights.i just know what to do thanks

Marilyn Stowe - July 5, 2013 at 1:17pm

Dear Marina
You can apply to the court for a transfer of the tenancy in a financial application in your divorce proceedings. You need to issue a Form A to get the process started. You may be entitled to a fee exemption too.
Best wishes
Marilyn

Aj Khan - July 15, 2013 at 12:02am

Hi Marilyn,
My brother and I have a joint ownership on a property, 50/50. He may soon be going through a divorce and he also has a child. I wanted to know whether his wife could have a share in this property after the divorce takes place?
Thank you.

Marilyn Stowe - July 22, 2013 at 6:38am

Dear AJ
Yes his wife could make a claim and include into it his joint ownership of this property. All property owned by the parties to a marriage is available for sharing. Whether the court does it is another matter.
Regards
Marilyn

jo - July 21, 2013 at 1:47pm

hi Marilyn
My parents put one hundred thousand pounds towards a house with annex for my brother and his wife to help them get a larger home for growing familye….they are now divorcing, mum and dad live in the annex, they have nothing in writing but daughter inlaw promised their money back but now letter fromlawyer saying opposite …can they get their money back out of the settlement when house sells.

Marilyn Stowe - July 22, 2013 at 6:29am

Dear Jo
Your parents must take separate legal advice. They need to assert their interest in the property. Their lawyers will advise them how to do so. I suggest they don’t delay.
Regards
Marilyn

Martha - July 21, 2013 at 6:44pm

Can you help, I owned my own house and my husband owned his own house before we met, when we later decided to get married we sold both houses and put the proceeds into buying a house together outright cash that we bought as joint tenants, although my husband did put a bit more towards it than me it I paid for everything before we married, the magority of the wedding and for most of the stuff we bought for the house and all our holidays as my husband had no money or savings throughout our relationship, we are now unfortunately going through a divorce and I am concerned my husband will try and fight for more than 50% of the property, can he do this, I keep asking my solicitor and he won’t give me a proper answer, I am very concerned as I need my 50% share to go toward my next house and I will have to get a mortgage, I have a minor to care for and he does not, she is at a critical point in her education and I am worried that if I don’t get what I am owed I will not be able to buy another property.

Maria - July 23, 2013 at 9:49pm

Hi
My husband and I are about to divorce.
We are very amicable, He is disabled and was awarded a lump sum after the accident which left him disabled. We have invested that money into property and rent out 3 houses to pay for his care needs. As well as these houses we jointly own our family home. Can we get a divorce without selling the 3 rental properties and continue owning them jointly? We will sell our marital home and buy 2 separate properties still owned jointly. Is this possible?
Thank you

Marilyn Stowe - July 27, 2013 at 6:45am

Dear Maria
You can settle on terms that suit you both. That is the beauty of our law.
Regards
Marilyn

Jenny - August 6, 2013 at 10:59am

I jointly own a property with my husband, we both live there, but I am looking to leave him and take the children as he refuses to leave and our marriage has broken down. Do I give up my right to the house if I move, can I force him to sell or buy me out. I also understand I cant apply for a council house as I own a property, is this true

Marilyn Stowe - August 6, 2013 at 11:54am

Dear Jenny
In a divorce you can apply for the entire property to be transferred to you and for maintenance for you and child support. So you might be able to stay there with the children. The court must take into account the children and your needs as well as your husbands wishes.
Please go and see a solicitor and get some good legal advice before doing anything rash.
Regards
Marilyn

James - August 16, 2013 at 8:51am

Hi, My house is currently owned as joint tenants I want to sever the joint tenancy, my only question is if the split today is 50/50 and I carry on paying the mortgage in full for the next 5/10/20 years does that percentage change into my benefit or does it remain at 50/50?
We have owned the house for 2 years on a 40 year mortgage so there is very little equity in the house at the moment and my partner left and moved out 2 months ago. I have always made the payments and will continue to do so.

Thank You

Marilyn Stowe - August 16, 2013 at 3:42pm

Dear James
Severing the joint tenancy will only ensure that each of your respective half shares in the house will pass as you leave them by will rather than automatically to the other.
You need to take action now to acquire the half share of the other, by either agreement or order of the court. If you leave it alone and do nothing, there is a danger that your former partner could still claim the other half share even though you have paid the mortgage and the outgoings. I don’t know whether this is a divorce or cohabitation situation, different rules may apply. Take immediate legal advice.
Regards
Marilyn

Luke - August 18, 2013 at 12:50am

You offer a lot of advice on these boards Marilyn, I have to say that regardless of our differences on family court ( 🙂 )it is impressive – I wish their were more lawyers like you.

Marilyn Stowe - August 18, 2013 at 6:56am

Dear Luke
Thank you!
Regards
Marilyn.

Kevin Eaglesfield - August 20, 2013 at 11:33pm

Hi, don’t know if you can help. I am tenant in common with the ex. I became a single parent and paid all of the mortgage , bills and maintenance for about the last 9 years. I’d like to sell now. Is she entitled to half the profits ?

Marilyn Stowe - August 21, 2013 at 7:20am

Dear Kevin
You need to take legal advise about the agreement made when you bought the property and exactly how it was conveyed to both of you. Was there a declaration of trust;- any agreement about how the ownership was to be split, and division of the met proceeds of sale? Your solicitor will want to read the conveyancing file and read the deeds to the property. Your solicitor will also want to know the facts about everything that happened when you split up and whether there was anything in writing about this, plus what happened thereafter, before he or she can fully advise you.
Regards
Marilyn

Julie - August 21, 2013 at 4:25pm

I have been divorced for 19 years and I stayed living in the house with my children. Because I am on benefits the mortgage had to stay in joint names even though myself and my ex do not like this . The deeds are in joint names as well and I wondered is there anyway both mortgage and deeds can be put into my sole name as I am worried incase anything happens to me or he gets funny he can claim half the house or demand half if I sell. Plus can I leave the house to my children in a will or can he claim half?

Marilyn Stowe - August 21, 2013 at 9:28pm

Dear Julie
You need a declaration that you are entitled to all the net proceeds of sale. It may not be possible to release him from the mortgage but it is possible to agree how the net proceeds are to be split when the house is sold. It seems like you never got a formal financial settlement when this would have been sorted out. I suggest you go and see a good family solicitor and do so.
Regards
Marilyn

Alan - August 22, 2013 at 11:01am

I’m recently divorced from following the completion of several tasks set out by the court (DA was issued in March). These were a pay off to myself plus the transfer of equity and mortgage to my ex wife.

Interestingly my ex wife has been in touch this week about me signing over the property via Land Registry as this is still recorded as ‘joint tennants’.

As the divorce is complete and the house solely in her name, does this step need to be taken by myself? and if not what would be the consequences of not signing over?

I’m not keen on sending her my new address as requested especially as both her father and her have been stalking my online presence (Facebook, LinkedIn, Twitter etc).

Any info would be greatly appreciated.

Many thanks.

Marilyn Stowe - August 22, 2013 at 6:34pm

Dear Alan
In order to transfer a property there has to be a separate deed doing just that. The court order isn’t sufficient. Similarly the mortgage has to be discharged and I expect a new one taken on by your ex. This is all called conveyancing and solicitors on both sides will do this.
Regards
Marilyn

grace - August 24, 2013 at 5:53pm

my husband and i divorced in 2007 the ancillary releif finished in 2009 and i transferred my bussiness and bussiness premises by order of the court for him to sell with in 2 years he died he left a will and now his sisters are running my bussiness and have the property the court have ordered it to be sold the property i bought in my sole name 6 months after we got divorced although i had the right to buy it at a reduced rate when we were married can i apply for a tennants in common

Marilyn Stowe - August 24, 2013 at 7:30pm

Dear Grace
Im happy to give you some pointers but Im really sorry I don’t understand what you’ve written.
Regards
Marilyn

Jane - August 25, 2013 at 5:54pm

Hi Marylin,

Can you please help with advice? I bought a property with former partner (never married or formalised the relationship) and we split (20 years ago and we were together for only 2 years). He moved on and said he wanted nothing from the house (Joint tenancy) as he only ‘signed for a loan’ and I paid all monies towards the price (he was unemployed). His family have now applied to Court of Protection and it seems they are wanting half of my family home despite no contributions actually ever being made.

1. Should I sever the tenancy
2. Can the court decide on a fair share
3. Can I expect fairness to play a part here and get 100% of MY home?

Please advise me Marrlyn I am at my whits end!

Marilyn Stowe - August 25, 2013 at 10:17pm

Dear Jane
I think from what little you write, you should be ok as on that basis. I think the agreement he made with you can be proved, he walked away and you paid for everything thereafter for twenty years in reliance on the agreement. I do think you need to see a solicitor urgently, to give you some detailed advice and to try and stop this in its tracks. Costs are payable by the losing party so they need to know that. As for severing the joint tenancy, although it seems to me you should, I don’t know enough about your case and can’t advise you specifically. You need to take your own legal advice and rely on it. All I can do is give some pointers.
Keep me informed if you will, its an interesting case.
Regards
Marilyn

stuart hope - August 26, 2013 at 12:54am

hi.i went bankrupt 1995.wife and i had morgage in both names.liquidater took my share,but 2 years on we were able to buy it of him.my wife lived in house as we are devorced for the last 16 years .now i want my share in house as ancilary rights wernt done in 1995.she says she owns house and i get nothing.my name is on land register.how do i stand please .many thanks stuart.ps she had tenants in to pay morgage

Marie - August 26, 2013 at 11:52am

Hello, please can you help. Around 18months ago I moved out of the nice family home with the two small children, aged 2 &7 now, into a much smaller place, as myself and my husband were not at all getting along and it was best for the children not to see this, he would not leave, so I had to. It was ment to only be for 6months as a break but 1wk later he informed me we werent getting back in, we are divorcing. He has not been paying the mortage correctly, it is in arreas, leaving no equity left in the house. I really want to move back in with my two girls as they love this house so much,it’s a family home with garden etc, I am currently in rented, I get help towards my rent but have been told il also get help towards the interest on the mortage, leaving me paying around the same as I do now in rented. He won’t move out, he says he can’t afford any where to rent, he states he wants a 3bedroom with garage and garden and he can’t afford this. I am taking him to court over the house and finances. What do you think the chances are of me and my children being allowed to move back home. Thank you very much for any advice you can give, marie

william - August 30, 2013 at 6:30pm

Marie,
my mother bought a house with my dad in 1990. just after that my dad left her and my mum brought three kids up whilst paying the mortgage by herself. he has put no money into the mortgage. now as my mothers mortgage is up the endowment policy wont pay out so my mother is left with 16,000 left to pay off. on that note as my dad hasn’t paid anything we was wondering how hard it would be to take him off the mortgage and place me on it? due to the face we need a new mortgage for the last 16,000 that needs paying off. thank you

Maria - September 2, 2013 at 12:09pm

Hi Marilyn,

My partner and I, in 1990, bought a property. After 2 years we split and I said to him to keep our names on it as I would treat it as a pension for later years. He has rented it out and taken all the profits from such for 20 years. Now we want to sell and I have had to do a lot of work to make it saleable. I have asked for a 50/50 split but he is refusing and offering a 60/40 in his favour. Can he does this? Am I entitled to 50%?

Marilyn Stowe - September 2, 2013 at 12:37pm

Dear Maria
In law a property which is owned jointly entitles both of you to an equal share when it is sold. It is hard to displace this. You do seem to have agreed to let him keep the rental income until the property came to be sold;- why was this? See a solicitor but at the moment, stand your ground and ask your solicitor about “equitable accounting” and how it applies to your case. If necessary ask to see a barrister who specialises in Law of Property cases and prepare a detailed statement about what was agreed and your contributions to the property financially and otherwise, likewise your ex partner.
Regards
Marilyn

Patricia Faulds - September 6, 2013 at 12:31pm

Hi Marliyn
I have joint mortgage with my husband the mortgage is cleared he has got himself into lots of debt so he now stays with my daughter, he wants to transfer his share to me so I am sole owner can this be done an how much will it cost we are both pensioners.
Many thanks

Dan - September 6, 2013 at 6:57pm

Hi Marilyn,
I own our house with my partner of 21 years as Joint Tenants.
If the relationship breaks down I may want to leave the house but don’t want to force a sale or force my partner (and 14 yr old daughter) to leave.
I merely want to protect my share of the house for the future so that when one day possibly when our daughter leaves home the house is sold I get my share.
Is this feasible and what do I need to do please?

Regards
Dan.

Marilyn Stowe - September 7, 2013 at 12:36pm

Dear Dan
I think you and your ex need to sever the joint tenancy and enter into a declaration of trust. This should put the matter beyond argument later on. See a solicitor and remember that both of you should make a will. You need to make provision for what would happen to your estate if you were to die, particularly during your daughter’s minority.
Regards
Marilyn

marshall - September 9, 2013 at 11:50am

i have one you have probably never heard. i am an american my wife is british. when we decided to move back to the uk, she put in about £40,000 and i put in around £30,000 (£15,000 to pay off her credit cards so she could qualify on her own income for the loan) and another £15,000 toward down payment stamp duty and to furnish the home even before i moved over here. we have moved twice since. after the last home sale we decided to rent a property for 6 months until we found the right house. one month later my wife moved out saying she needed some space when in actuality, she had taken all of our money from the sale proceeds, paid off all her bills and bought another house to live in having only £25,000 to put down, leaving me stuck in a 6 month rental. i have filed with land registry on the new property but do i have any rights to occupy the new home if i can’t afford to rent

Marilyn Stowe - September 10, 2013 at 6:49am

Dear Marshall
These are my thoughts:- I don’t think you have an automatic right to live in her property but you do have rights to a financial settlement in a divorce. You can make a claim for a lump sum order and a transfer of property order together with an application for interim and long term maintenance as well. This might be relevant when it comes to renting somewhere. You also need to consider an application for an injunction to freeze the rest of the money she has taken if any. You also need to make sure you have registered the correct restriction at the Land Registry.
See a solicitor who can give you personal legal advice in possession of all the facts.
Regards
Marilyn

SANDRA - September 13, 2013 at 12:48pm

Hello Marilyn,

I have been with my partner for 10 years, we bought our home one year ago, I insisted my name be put on the mortgage as I was feeling quite vulnerable after his previous infidelities and wanted to protect myself and children’s future. My name was not on the previous house/mortgage and I kept hearing “This is my house!”

We are “Joint Tenants” but I have not contributed anything to the mortgage/deposit as I gave up work to raise our two children.

I’m a little worried could you answer the following please:

1, Am I entitled to 50/50 equity in the house?
2, Can he contest this?

Thank you in advance for taking time out to answer our question 🙂

Marilyn Stowe - September 15, 2013 at 1:25pm

Dear Sandra,
1. Yes if you own as joint tenants.
2. He could try but succeeding is another question. If you separate the court has power to postpone a sale of the property in any event until the children grow up. You would be able to make a claim for the children under the Children Act also.
You could put it all beyond doubt by having a Declaration of Trust in relation to the property and a Cohabitation Agreement. Also you need to make sure you both make wills and he insures his life to fully cover the payments he is making to you and the children. You need to think not only about splitting up but also what would happen on the unexpected death of either of you. As you aren’t married you aren’t automatically regarded as legally connected persons in law and the outcome in both can be very unfair to a dependent cohabitee and children unless fully covered by both of you acting sensibly for the overall benefit of the children.
One final word of warning, as you aren’t working and may not have much capital income or pension, you have no automatic claims if you were to split, unlike a wife who would have. Think carefully about how to sort this out. You may be very vulnerable.
Go and see a solicitor for advice.
Regards
Marilyn

nikky - September 19, 2013 at 7:34pm

a friend of mine had a property before she got married.
When she married she bought a house with her new husband but she paid for the deposit of the house, the husband didn’t leave any deposit. Now they are divorced. The husband says they must sale the joint house and share the money 50/50. Is this right? Will she be given her deposit first before sharing the remaining money with her ex?

Marilyn Stowe - September 20, 2013 at 1:23pm

Dear Nikky
I would suggest your friend downloads my book Divorce and Splitting Up on the side bar of this blog because it describes the process in much more detail than I can here. It will cost her 99p for a download or £5.99 for the hardback but either way all proceeds are going to The Children’s Society a very deserving charity.
There is no formula, no set division. It depends on a number of factors all of which are included in the book.
Regards
Marilyn

Gaston - September 19, 2013 at 9:51pm

Hello Marilyn
This the situation .I am in the proces of getting amicably divorced
My as yet married wife and I are joint tents of a property .She tells me that once divorced she is no longer automatically intitled to the whole property upon my death. I was told that where a joint tenancy exists the suviving tenant automatically becomes the sole owner even though the marriage has ended Who is right?
Regards
Gaston

Marilyn Stowe - September 20, 2013 at 1:42pm

Dear Gaston
This is a very difficult area of the law. Whether the joint tenancy still exists at the time of death of one of the parties and thus the entire beneficial interest has passed to the survivor or whether the joint tenancy has been severed, will be an issue of fact for determination at that time. The existence of Decree Absolute may not affect the joint tenancy, but it might. The case law is complicated. My general view is that you put the issue beyond doubt in the financial order on divorce and if the property is to be transferred to your wife, to do it but your own solicitors will advise you. All I can do is point out the possible pitfalls.
Regards
Marilyn

Serena - September 25, 2013 at 1:46pm

I am considering divorce proceedings against my husband, it is all amicable. The marital home is mortgaged in his name only and land registry in his name only. We have been married for 5 yrs and co-habited 8yrs previous to that. Can we obtain a tennants in common or do I need to be registered on land registry first?

Marilyn Stowe - September 25, 2013 at 2:14pm

Dear Serena
I am sorry but your question doesn’t make much sense to me. I don’t understand what you mean. It doesn’t matter who owns the property if you are married, all property owned by either of you or owned jointly is available for sharing. You can make a claim for a transfer of property order and lump sum besides all the other claims such as maintenance and pension share.
Do take legal advice and you can download my 350 page book for 99p from the side bar of this blog, which is written for people splitting up, for a more detailed analysis. All proceeds are going to the Children’s Society charity.
Regards
Marilyn

marianne - September 25, 2013 at 9:38pm

i have been separated from my husband for the past 15 years,this was due to his alcohol problem . i have been reluctant to go through with a divorce. we have a property that he lives in that has no mortgage it is in joint names. he has now sent me a letter informing me of severance of the property. what would you advise.

Marilyn Stowe - September 26, 2013 at 1:52pm

Dear Marianne
He is trying to ensure that if anything happens to him, his half share of the house doesn’t automatically go to you, but to whomever he leaves it by will.
Do you think it is now a good time for you to sort out your divorce/ finances and your own will too if you haven’t made one?
Regards
Marilyn

Jackie - September 28, 2013 at 4:31pm

Dear Marilyn,

Wow, how busy you must be! Mine is a very quick question please? My Mum and her now deceased partner drew up wills as joint tenants, but without her knowledge he changed it to tenants in common. Water under the bridge. Mum is now considering selling the house as it is becoming unmanageable for her. Can you advise what input/agreement does she need from his daughter who inherited his share in order to sell? She is proving difficult to contact.

Marilyn Stowe - September 29, 2013 at 8:07am

Dear Jackie
Your mother needs her to help with the sale as she sounds like she will be the executrix/administrstatrix of his estate depending on whether he left a will. She may not. There may be a solicitor:- you need to check who got the probate for the estate. This is a public document. This person will need to sign the documents and receive the money.
Your mother’s solicitor will probably find out who to deal with.
One point, your mum may have a claim against his estate under the Inheritance (Provision for family and Dependents)Act 1975, so she should consider this with her solicitor.
Regards
Marilyn

Jackie - September 29, 2013 at 8:25am

Marilyn – an impressively quick response!

I can move it forward on her behalf now and hopefully resolve the situation.

Many thanks for your advice.

Jackie

Jackie - September 29, 2013 at 10:05am

Hi Marilyn

A further question if I may. If the daughter doesn’t want to sell, given the current housing market, what options does my Mum have? She has lived in the property for over 30 years, her deceased partner came into it approximately 10 years ago. He left her nothing in his will. She is finding it difficult to maintain it and manage stairs, the garden etc. due to reduced mobility. Will she have to continue struggling if the daughter objects to the sale?

Marilyn Stowe - September 29, 2013 at 10:30am

Dear Jackie
A quick lesson in land law! All jointly owned property is held on a trust for sale irrespective of whether it is held as joint tenants or tenants in common. That means if one party wants to sell then it must be sold. If the other objects then the court must decide but it’s very difficult to oppose a sale. If the daughter wants it to remain unsold then she could buy your mum out but I would have thought she too would want the money.
As I said earlier your mum should take advice advice about a possible claim she may have through being left nothing in his will. She might be able to claim for more of or even the whole of the equity in the property:- obviously I can’t specifically advise as I don’t know the facts as it all depends on the circumstances.
Regards
Marilyn

Jackie - September 29, 2013 at 10:51am

Marilyn, you are a diamond. I can’t tell you how much I appreciate your advice and the speed of your response.

Now go and enjoy the weekend!! 🙂

Jackie

Paul - September 29, 2013 at 1:07pm

Marilyn,

just a quick one.

My mother and father devorced 20 years ago,in the setlement was that my father recieves 20% of the value of my mothers home when she sells it,or comes into any money,basically if and when she can afford to pay him off.She has just recieved a letter from the land registry (form B12) stateing my father is applying for his name to be put on the houshold’s registry.Could you explain what this means please?

Thanks for your time,

Paul.

Marilyn Stowe - September 29, 2013 at 2:48pm

Dear Paul
I think your father is simply protecting his interest by registering the court order at the Land Registry so that the property can’t be sold without him knowing and his share being paid to him.
This may assist:- http://www.landregistry.gov.uk/professional/guides/practice-guide-19
Of course you should check with your own solicitor.
Regards
Marilyn

Paul - September 29, 2013 at 2:52pm

Thanks Marilyn for you quick response,it is as we thought.

Just one more thing if you dont mind,if my father dies before my mother,will his share of the house go to his new wife?

Regards,

Paul.

Marilyn Stowe - September 29, 2013 at 10:11pm

Dear Paul
I suspect it is your father’s solicitors who are tidying up his affairs and that he will have made a will.
If someone dies without a will then the Intestacy Rules apply. See this for more information:-https://www.gov.uk/inherits-someone-dies-without-will
Regards
Marilyn

Maureen - September 29, 2013 at 9:59pm

My situation
Recently split from my husband ( he’s moved out into rented) iam currently living with my two children in the family home ( joint mortgaged ) I work part time my husband earns 2.5 times what I earn but he’s expecting me to pay the full mortgage even though my wage after mortgage would be £350 . What would be your advise could the law enforce him to pay towards the mortgage ?

Marilyn Stowe - September 29, 2013 at 10:15pm

Dear Maureen
Could I suggest you download my book from the side bar of this blog? It will cost you 99p which will go to The Children’s society! a charity.
The book is written for everyone finding themselves facing family breakdown and describes over 350pages what the law is, how it applies and what the procedure is.
You are entitled to claim interim maintenance and long term maintenance from him but you need to know what else as well and what you need to think about and how to do it. So please do it.
Regards
Marilyn

Andrew - September 30, 2013 at 11:21am

My parents made an agreement to be tenents-in-common and in my mothers will she named me and my father as trustees. My mother died two years ago but we have done nothing regarding the property, in that my parents have lived at the same address since 1955 and the property is not registered with the Land Registry. I have spoken to my father who is 90 years old and he is unwilling to pay for the property to be registered as he sees no need and I cannot afford the likely fee of a solicitor but am concerned that should he be taken into care I would not be able to prove I had a claim on the property. Can you advise.

Marilyn Stowe - October 2, 2013 at 3:20pm

Dear Andrew
I’m not clear what you mean. Are you saying the tenancy was never legally severed by written notice? Can you prove that it was severed, because otherwise your mother’s share of the house will have automatically passed to your father. I don’t know what your mother stipulated in her will, but if she left her half share of the property to you that seems to be prima facie evidence of severance, and presumably there will be a file with her instructions which may also record the severance – then you should be ok – but you need to discuss this with your solicitors and they will be able to take the matter from there, perhaps by contacting your father and the solicitors who acted for your mother and asking for confirmation as to what occurred and when.
Regards
Marilyn

Peter Thornton - October 2, 2013 at 5:52pm

My mother and father divorced in 2000 and my mother died two years later.
I asked my father about the house and he told me he got the house in the divorce and he let my mum live in it.
i recently completed a property search and my mother name is still on the deeds.
My mother was mentally ill and would have never even thought to get it changed,she hardly even spoke to her solictor during her divorce.
Would i be able to make a claim on the property.

Neil - October 4, 2013 at 12:08am

Hi
My wife passed away last year and left her half of our house to our children, now aged 19,13 and 12. I want to buy a bigger house for us all and in the searches a land registry entry came to light where I cannot re-mortgage my existing house as the children have a share in it.

I am in danger of losing the house I want to buy. the kids love the new house. what’s the quickest way to get over this problem?

Your advice would be very much appreciated.

Marilyn Stowe - October 4, 2013 at 4:09pm

Dear Neil
The children’s half share in the house will have been left on trust for the children in accordance with the terms of your late wife’s will. There must be executors and trustees of her estate and they have a duty to act in the children’s best interests. They can take steps to apply her estate for the benefit of the children and its they who I think you need to deal with.
Regards,
Marilyn

Gina - October 4, 2013 at 11:36am

Hi Marilyn

What a great website! And detailed advice. I do hope you have a moment to glance through my problem and give me your sage view:

My ex-husband and I had been married for 6 years when we decided to amicably separate in 2007. I didn’t want to live in the (4 bed-roomed) marital home in London so it seemed more logical that he stayed and rented out the rooms. Myself and our daughter, 18 months old at the time, moved first into rented accommodation, then within a few months bought a small house just outside London. As I was self employed at the time I would have not been able to afford to buy the house by myself so we bought it jointly and so it is in a joint mortgage and we are registered as joint tenants on the Land Registry. The understanding between my ex and myself was that I gave up all my financial rights to the London home and he would have no rights to my one. The deposit and mortgage was paid from an existing joint account which we both paid into until we began divorce proceedings in 2009, when the mortgage was transferred into my personal account. We were finally divorced in 2010, the hold up due to that fact that our divorcing solicitor, and family friend, sadly died very suddenly half way through the proceedings.

In 2012 my ex-husband had to declare bankruptcy due to some unwise investments. He told me that he had to declare bankruptcy and I knew ‘my’ property would be likely to be viewed as ‘joint’, quite reasonably as I understand that would be a lawful view.

I am currently submitting my response to The Official Receiver’s application to become trustee in bankruptcy via the Land Registration First Tier Tribunal. I know I really don’t have much of a chance to win my case as it is an unusual set of circumstances, but they are the truth. In your view, do you think I have ANY case to state that the property was bought jointly as an act of ‘severance’ between my ex and myself? We both now realise we were not advised of the full implications of not registering our financial split legally when we divorced as our solicitor was, understandably, not able to focus fully on the case. When he died his brother had to come out of retirement to pick up all his caseload so we were just formally divorced and thought the matter was closed.

Any thoughts on this would be most appreciated Marilyn. I can handle the hard truth! 🙂

Marilyn Stowe - October 4, 2013 at 4:12pm

Dear Gina
You say “do you think I have any case to state that the property was bought jointly as an act of severance between my ex and myself” Im really sorry but I cant understand your question.
Regards
Marilyn

Gina - October 4, 2013 at 6:34pm

Apologies if I was not clear. What I am asking is do I have a leg to stand on in claiming that my ex assisted in the purchase of my home solely because I couldn’t have done it on my own and had no intention of ever claiming a half share in it?
Many thanks.

Marilyn Stowe - October 4, 2013 at 6:43pm

Dear Gina
I think, just think.. you may. You and he had an agreement but it wasn’t formalised. You need to produce the figures from the time to explain more clearly what happened and why. I think you should pursue this at least obtaining an informed opinion perhaps from counsel (a barrister). This was your matrimonial settlement but as I’m not an insolvency lawyer I can’t say for sure how with all the facts it would pan out.
Regards
Marilyn

Dave - October 5, 2013 at 11:33pm

I am a joint owner of a property with my parents. my brother and sisters are bullying my wife. can i put an injunction on them. my father left this country for last 15 years. my mother suffers from dementia but is out of the list as she is not willing to be treated by it.

MB - October 9, 2013 at 2:27pm

I split with my partner circa Feb 2009. She stayed in the home that we jointly own with our 2 children and paid the mortgage as i had to fund my own accommodation. In Nov 2012 she decided to move in with her new partner and rent our property out, (I have never had a penny from the rent). She says she cannot buy me out as she has a CCJ and cannot get the mortgage transferred solely in to her name and she won’t agree to sell. What are the proceedings if I were to force sale and fee wise, do the fees come out of the final sale of the house or are there any upfront fees to be paid?

CB - October 18, 2013 at 10:53am

Recently divorced and agreed via consent order that the house would be occupied by ex-wife and the 2 children (18 and 17) until they finish University. There is no mortgage and we are now joint tenants with an equal share. Wording of consent order states that ex-wife is allowed to live in the house rent free to the exclusion of me until the kids leave University and I have moved out to another home. We agreed that we will jointly maintain the property but I was wondering what right of access I have ? I still own 50% but is she allowed to exclude me from the home (assuming we make arrangements for me to visit to check house is being maintained). Do I have to hand back the house keys ?

Marilyn Stowe - October 18, 2013 at 2:16pm

Dear CB
I think the most sensible way to proceed is to agree scheduled inspection appointments. Your ex has a right to a private life as have you. You should both respect each other’s rights going forward.
Regards
Marilyn

Clio - October 25, 2013 at 2:05am

My husband left me on my birthday for yet another woman.
I have filed for divorce – I bought the house for us – put him on the deeds but for only 10 per-cent of the property – will this stand up in court and what can I claim any monies back from his debts that I have paid off. Thanks.

Marilyn Stowe - October 25, 2013 at 4:51pm

Dear Clio
Why not download my book on the side bar for 99p which goes to charity. There is a hard back copy too for £5.99 again all proceeds to charity.
It contains 300pages of advice about getting divorced including a lot of detail about what happens to finances and how the assets, income and capital are divided. There is no set formula, every case is different so if you read the book it will guide you and assist you to settle.
Regards
Marilyn

Jackie - October 31, 2013 at 6:55pm

Hi Marilyn – sorry to trouble you yet again. Further to previous posts/questions Mum is progressing selling the house but found out today that the daughter of her ex-partner who has inherited his share of the house is named on the Land Registry. Does this affect Mum’s ability to sell? The daughter is not responding now to my emails advising that Mum has instructed an agent and we need to know if she wants to exercise her option to buy Mum out. Help!!

Many thanks

Jackie

Marilyn Stowe - October 31, 2013 at 7:01pm

Dear Jackie
Yes it does. She will need to agree to the sale. So your mum’s solicitors will need to obtain her consent or a court order but I wouldn’t normally expect a problem with obtaining a court order for sale. I obviously don’t know the facts here. Her solicitors will no doubt point out the risk she runs in costs if it’s necessary to make an application. Your mum mustn’t rely on my general opinion however and obtain her own legal advice.
Regards
Marilyn

Jackie - October 31, 2013 at 7:22pm

Do you ever take a break?? 🙂

Thanks once again Marilyn – your advice is invaluable as ever.

Jackie

Terry - November 11, 2013 at 2:07pm

Good afternoon Marilyn.
My wife called an end to our marriage last Christmas and told me to leave. As I am unable to continue paying all the bills and rent I told her this was not an option. Instead I agreed to carry on supporting my wife and to adult children until she could sort her financial affairs out.
It is now eleven months on and she has not found a job and is refusing to allow me to sell the house. The value is approximately £130,000-00 with a mortgage or around £10,000-00 left. I have offered to buy her out which she has refused. There is a shared ownership property available to her locally but she is saying the third bedroom is too small even though my eldest daughter is only there part time. I have another property that I want to buy but am worried I will miss this whilst she drags her heels. Is there any way that I can force the sale to go ahead? I have agreed to let her have half of the proceeds even though her financial input to the house has been next to zero and I’ve told her I would not fight over any fixtures or fittings. Many thanks Terry

Marilyn Stowe - November 11, 2013 at 3:52pm

Dear Terry
Could I suggest you download my book from the side bar for 99p. The proceeds go to charity and there are 300odd pages to help you.
You will read about the law, the process and how to go forward, also how to settle.
You need to do this now before you take any more steps, except I strongly advise seeing a solicitor who will give you personal advise.
You and your wife need to agree the net income of both of you (including the net of tax future income she can reasonably earn) and your capital from all sources, including the value of your pensions then consider your respective needs and agree how it will all be divided. The contributions of adult children who are not in full time education may be relevant.
It’s not easy, hence I suggest you read the book.
It seems your wife is scared about life after separation and thats normal. You need to agree how you both will manage, so the fears subside.
Perhaps mediation might be a good idea here.
If all negotiation fails, you can proceed to divorce and apply for a financial settlement and the book will explain your options as to how you go ahead. There’s too much information you do need to answer in this limited reply.
Regards
Marilyn

Luke - November 11, 2013 at 5:28pm

Terry,
your wife is taking the pi**, you need to get a grip, get a lawyer and start taking control of your life – without her.

Babs - November 20, 2013 at 8:39am

Hello,
My partner and I have split up after 4 yrs together. The property we own is being sold and i have calculated that after my deposit is returned to me there is around £15k equity. I gave calculated that I gave put an additional £51k into the property and he has put in £30k. Should the equity be split proportionately? On the other hand why should I ultimately lose more than him?

Please help

Kind regards

Tracey

Stitchedup - November 20, 2013 at 11:31am

Babs, what makes you think your deposit will be returned to you?? Did the deposit enter a shared bank account at any point??

My ex and I contributed individual deposits, mine much larger than hers, but lumped them In a joint savings account just before paying for the house. You can guess what happened.

Babs - November 20, 2013 at 10:27pm

It has been agreed from the beginning that the deposit would be returned to me. I can prove where it came from so no issue. We are tenants in common in the deeds.

Marilyn Stowe - November 20, 2013 at 10:44pm

Dear Babs
You own as tenants in common and therefore there may be a declaration of trust as to how the proceeds should be divided on sale. Have you checked with the conveyancing solicitor what agreement was reached and what the deeds say?
Regards
Marilyn

Stitchedup - November 21, 2013 at 12:08pm

Marilyn is the lawyer here not me.

I will give you a taste of what can happen though. Like you, I felt I had no problem identifying where the deposit came from. I provided pay slips showing bonus payments and relocation payments running into tens of thousands of pounds, and bank statements showing those payments going into my personal account, then the transfer at the last minute into the joint savings account.

The money clearly came form me but was effectively “laundered” as it then passed through a joint savings account. I’m still smarting from that.

Babs - November 21, 2013 at 12:40pm

Hi Marilyn
Thank you for your response,
The deeds only say we are tenants in common I’m afraid and this was because I have children from a previous relationship. Like most could setting up home together we didn’t plan for this event unfortunately. I thought as long as I kept a paper trail of where all the money had come from I would be ok – somewhat naively, but we live and learn.
Kind regards

Stitchedup - November 21, 2013 at 12:43pm

Another point on the above, my ex and I were unmarried joint tenants. When we bought the house, I remember being asked whether we wanted to be joint tenants or tenants in common. The Solicitor explained that joint tenants meant 50% share of the house. I hesitated, my ex and I just looking at each other. The solicitor sensing the uncertainty interrupted and said “it only really applies on death anyway”. Ok, I said, joint tenants.

The reason I hesitated is that I contributed a much larger share to the deposit and the ex and I had split up a year or so earlier only to reconcile.

BIG MISTAKE, it turns out it doesn’t only apply on death, it also applies if you separate when both alive.

Marilyn, please correct me if I’ve said anything above that’s misleading.

Marilyn Stowe - November 21, 2013 at 4:05pm

Dear Stitched up
The same applies to you. A solicitor has a duty to explain how ownership works, and how the net proceeds may be distributed particularly where there is a difference in contribution to the purchase price. It isn’t just about what happens on death it’s about what happens during your respective life times. Have a look at the conveyancing file to see what recorded advice was given. You too may have a claim in negligence.
Marilyn

Babs - November 21, 2013 at 12:47pm

Perhaps I should add that he seems to have no receipts for work he carried out or paid for during refurbishment of the house so was very keen to agree a 50/50 split, even going out of his way to assist me following the move to keep me sweet and avoid legal fees and, I would guess, the possibility of losin out.
Thanks.

Babs - November 21, 2013 at 2:39pm

Sorry stitched up, sounds like you were badly advised. Fortunately the conveyancing solicitor (despite being a good family friend of the ex) did the decent think and recorded on the deeds that we were “tenants in common”.
I do believe my ex is owed something, I’m not completely ruthless. I just wonder how a judge would decided who was owed what? I’m pretty sure he won’t let it go to court though as he has little financial proof but also long standing mental health issues and a history of domestic abuse he would not like raised I am sure.

Marilyn Stowe - November 21, 2013 at 4:01pm

Dear Babs
Your solicitor could have prepared a declaration of trust which recorded exactly how the property was owned and how the proceeds of sale were to be split. If this wasn’t discussed despite the solicitor being aware there was a difference in contribution then the solicitor is potentially liable to you in negligence.
If you can prove that it was always agreed how the net proceeds were to be divided then you may still have a case. Do go and get some personal legal advice.
Regards
Marilyn

Babs - November 21, 2013 at 4:47pm

Hello,
No, he didn’t offer to prepare a declaration of trust, I had no idea this was an option. I said that surely I would be ok with being able to prove where funds came from and I had no response so assumed I was correct in the assumption.
Thanks for the advice

Marilyn Stowe - November 21, 2013 at 10:40pm

Dear Babs
Pleasure. Given you did not know this was an option until you wrote to me, I think you should go and see a solicitor with a view to making a claim against your conveyancing solicitor. You will be advised at the same time whether there is any realistic prospect of claiming against your ex.
Regards
Marilyn

Jean - November 22, 2013 at 5:39pm

Marilyn,

My daughter and I own a flat 50% each joint tenancy and she has lived in the flat for five years and pays the mortgage and bills. I have my own home elsewhere. She now earns enough to take on the mortgage and has had a mortgage offer in her name only. I would like to sign my 50% over to her and for her to own the property outright for no monetary gain. Is this something that can be done? Would I be liable for any form of tax?

Marilyn Stowe - November 22, 2013 at 6:26pm

Dear Jean
The taxes you need to consider are Capital Gains tax and Inheritance tax. You must also consider that your share if still owned by you would be exempt from a claim by a potential son in law in the event of a divorce. Sorry to be a bit negative but you need good tax advice and then you can make a decision in your best interests and that of your daughter. I don’t think there is a perfect answer but if the flat hasn’t gone up appreciably CGT isn’t a problem and you live more than 7 years from a tax perspective it makes sense, but from a family law perspective in the future, it might not.
I can only give you a very general view, I’m not a tax lawyer, you should take your own personal advice.
Regards

Andrew - November 22, 2013 at 7:08pm

Jean, depending on your age, the tax risk on your death within seven years is probably best covered by a one-off life insurance policy.

TracyF - November 28, 2013 at 1:10pm

Hi Marilyn
Thank you for such a wonderfully informative site. I was hoping you might clarify something for me…

I have just sent the forms to apply for decree nisi in an uncontested divorce after more than 3 years apart.

I left the marital home and my children (15 & 22) in their fathers care. I now live in a small flat but am independent and pay regular maintenance despite the fact that my husband earns significantly more than I do and it leaves me with little to spare. I walked away with the car (which I need to take my youngest to school each day) and nothing else.

The question is this… we own 2 properties of differing values but with similar equity (between $30k and 60k each) one of which is rented out and the other which is the family home.

If we agreed between us that I have the rented one and he has the marital home – would we still need full disclosure of assets? I know he wont want to disclose his assets and it might make him angry if it has to happen so thought that if I can get him to agree to the property split I could say I will not ask for full disclosure… I want the quickest and most pain free divorce possible for my children and am not concerned about monetary or material gain. That said I do not want to walk away with nothing out of principal and because I cannot be threatened or bullied into doing so.

Once the nisi comes through I will probably seek the advice of a solicitor but I wanted to clarify this in the first instance.

Thank you for any advice you can offer.
T

Marilyn Stowe - November 28, 2013 at 2:06pm

Dear TracyF
You can agree whatever you want with your husband. In a consent order he will need to give disclosure of his capital and income. However, I never understand why anyone would want to sort out one of the most complicated issues they will ever come across, ie the end of their marriage, without any legal knowledge advice or support at all because they want it done quickly and painlessly. I hope you don’t take offence at these questions but I’m worried you have been bullied and you are afraid despite what you say, or you would approach this differently. So;-
1. What makes you think that taking the rented property and leaving him free to retain everything else without disclosure is the right way and one which at the end of your marriage is fair? I assume you are middle aged, and you say you earn less than him.Have you considered your own needs for the future – how they will be met?
2. What gives him the right to retain the lion’s share? You go on to say you left the children in their father’s care, but I note they are 15 and 22.
3.Are you still paying for the 22 year old? If so, is he/she in a first degree at University? If not, then why?
4.Why would it concern you if in giving disclosure “it would make him angry”? Does it matter – if he has to do so by law and he has to do what is fair and right?
Division of the assets of a marriage should be fair. Emotions don’t come into it.
Please take legal advice, discuss with your solicitor what’s appropriate for you. Beforehand you can download my book from the side bar for 99p and this should give you an idea about your entitlements.
Be brave and make a stand.
Regards
Marilyn

James - November 30, 2013 at 4:03am

Hey there, My great grandma recently passed (6 days ago) and its sad to see me in here asking questions about things she owned but i have a very greedy family and i need to know what all i can do to keep them from taking everyone. When my great grandfather passed his will (they had a shared will) stated 60% of the House and property goes to my dad, 20% went to another daugther, 10% went to one of there sons, and another 10% to there other son. Well my dad has lived at the house taking care of my great grandma for about 5 years now, This is all he has as hes retired and went the route of taking care of his mother instead of buying things fromhimself. Well the other siblings dont want there shares and just want to sell the house all together and collect the money. Dad cant buy there shares, for one i dont think they would sell them to him because they want money for the whole house and for 2 he cant afford to buy them anyways because its a lakefront prop. and got alot of taxes and what not. My question is can they force him to sell his shares or somehow take them from him? What would he be able to do to protect his shares and be able to stay there?

Marilyn Stowe - November 30, 2013 at 9:10pm

Dear James
If you are writing from England and Wales then I think your father might be able to oppose a sale under Sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996 as the court will consider all the circumstances and might postpone sale during his lifetime. I can’t advise whether or not he will succeed:- he certainly needs to take legal advise.
There is another possibility and that is making a claim against both your great grandparents estate under the Inheritance Provision for Family and Dependents Act 1975. Again it’s a long shot, he certainly seems to be out of time and needs permission to make an application for your great grandfather’s estate – but I’m mentioning it as a possibility.
Go and see a solicitor who specialises in this area.
Regards
Marilyn

Sarah H - November 30, 2013 at 11:27am

Hello Marilyn

I purchased my house for £249, 999 as joint tenants with my husband. I want to change the ownership to tenants in common in unequal shares as I put down the £90,000 deposit. I may leave him in future and want to ensure that my initial financial investment is protected. I have explained this to my husband and he has made no comment.
I know I will also have to make a new will but what course of action should I take now – I am concerned that my husband will do the notice of severance first in equal shares and I won’t be able to challenge that (am I right in saying the notice of severance can be served in equal shares without the other parties agreement?).
Thank you in advance for any pointers you can give me.
Kind regards
Sarah

Marilyn Stowe - November 30, 2013 at 8:56pm

Dear Sarah
One of the advantages of marriage is you aren’t bound by strict property rules in the same way as cohabitants. So even if you own property in a way which doesn’t reflect your actual contribution the court can still adjust your eventual share to reflect your contribution:- one of the factors it must take into account is financial and non financial contributions. (See my book for more info from the sidebar price 99p all proceeds to The children’s society and yes it’s nearly Xmas and those children are deserving) but also see Section 25 Matrimonial Causes Act 1973 for the factors the court takes into account.
So before doing any deal get proper legal advice to ensure that all your reasonable needs are considered. You are a wife not a cohabitant and you may well be entitled to more than you think.
As to a will yes that makes sense so does severing the joint tenancy if you want your current half share to pass elsewhere in the event of your death before the finances/divorce is resolved. That works both ways, so if he were to predecease you, his half share wouldn’t automatically pass to you. However you could still challenge this under the Inheritance Provision for Family and Dependents Act 1985.
A will is automatically invalid on remarriage unless made expressly in contemplation of that marriage and any gift to a former spouse will automatically fail on decree absolute.
Hope this helps,
Regards
Marilyn

Marilyn Stowe - November 30, 2013 at 9:20pm

Dear Sarah H
The position of a wife is protected in law and you are not treated in the same way as a cohabitant. Thus strict property rules do not apply and the court will take into account your financial and non financial contributions in determining a fair outcome. For more information as to all factors the court considers and your entitlements which could well be more than you think, including spousal support, please download my book from the side bar. It will cost you 99p but all the proceeds go to deserving children at The Children’s Society. (And it’s nearly Xmas so thanks if you do so, in advance!)
It’s a good idea to make a will, which is automatically void on remarriage unless expressly made in contemplation of remarriage and any gift to a spouse fails on decree absolute. It’s also a good idea to sever the joint tenancy which means if either of you predecease the other before a financial settlement is in place, your current half shares in the property will pass to your desired beneficiaries in your will. If he does predecease you before a financial settlement is in place, a claim can still be made against his half share under the Inheritance (Provision for Family and Dependents) Act 1975.
I hope this helps,
Regards
Marilyn

Andrew - November 30, 2013 at 12:19pm

James, there is something about your English which says American to me. “Passed” “taking everyone” “hey there” “taking everyone” – all American idiom. I think you should say in what jurisdiction this is all going on.

Julie - December 16, 2013 at 9:07am

Hi Marilyn
I wish to move out of the marital home but only have the basic pension. How can I afford this? We have a joint bank account and also jointly own the house. Can this be done legally and amicably or through a solicitor. How would I pay solicitors fees as £109 a week would not cover this? I’ve been told not to leave the marital home so I don’t know what to do. Please advise. Thank you. ( I’m 63 and my husband is 60 and part owns his company.

Dallas - December 18, 2013 at 2:54am

Dear Marilyn
I am a tenant common with my sister on a property that she now wants to sell. I have no objection to a sale as I am unable to buy her out. However over the past year I have spent a considerable amount of money converting it into self contained units for the purpose of renting them out. Where do I stand in terms of recouping the money I have invested upon the sale of the property.
Any advice you can give will be much appreciated

Marilyn Stowe - December 21, 2013 at 4:24pm

Dear Dallas
This is a useful article. See para 3.
http://1chancerylane.co.uk/download/MzM3
Regards
Marilyn

Jane - December 20, 2013 at 9:50pm

Hi,
I have been renting property with my now ex partner since september, he is wealthy and I am currently unemployed. The contract is joint, both our names on it and we signed for a year. However, it has just been brought to my attention that there is a break clause in march. My partner has ended our relationship and has given notice. He promised to support me with the bills and he is not communicating. All the bills are in my name, and i am not working and struggling to pay, can i put them in his name even though he isn’t living here? He is wealthy, i am not working. Is he liable as it is a joint tenancy?

Dan - December 26, 2013 at 11:41am

Dear Marilyn

I hope you can advise. I divorced in 2006, my partner, an addict, left me with 2 dependents. I managed to secure residency, prohibited steps and the divorce as soon as I possibly could but due to a number of ‘no-shows’ ancillary/property concerns were never addressed. I have continued to meet the mortgage payments, receive no CSA payments at all and there is ‘no’ contact whatsoever with the ex partner, not even for the dependants, this has been the way since 2006.

Given the separation and divorce took place some 8 years ago I am still worried about the future for the dependants should something happen to me. We were joint tenants and still are. I know I need to take care and finalise proceedings but, having been through much of the system already with a non-communicative partner, reluctant to pursue, costs are a concern and (property 50/50) division also worries me greatly, even though I understand fully that additional time will only complicate this exponentially. I am seriously considering just sitting tight and playing the waiting game but understand the complications should my death ensue, given that I am sole provider to the dependants.

Where does one stand with non-existent, non-communicative and unresponsive partners with addictions/chemical dependencies that prevent them making sound decisions or showing any interest in proceedings, should I return to court in an effort to secure the ownership transfer of the property? Would I be in the ‘lap of the gods’ in court or do you think a judge would make decisions in the absence of an answering partner? All I have is the verbal statements that were made in that my ex partner wanted nothing at all from me, the property or even their dependants.

I would sincerely appreciate any advice, comments or your thoughts when you have a spare moment.

P.S Merry Christmas

Marilyn Stowe - December 26, 2013 at 10:48pm

Dear Dan
You could apply for a transfer of property order. Go to the side bar on the blog and you can download my 300page book free which will give advise you need to make a decision.
Regards
Marilyn

Neil - December 26, 2013 at 7:23pm

Dear Marilyn, My dad left mne a home that was owned by my aunt.But prior to this it had been grandma and grandads home since 1958 so their was no mortgage.My ex was on DLA and put nothing into it and i was the only earner.My dad put her name on the deeds incase anything happened to me but 3 weeks after dad died 4 years ago she left.Now she is wanting the sale of the house so she can have half.I rent out a house but she wants half of my home plus rent as i have lived on my own in the property for the past 4 years.All my solicitor keeps telling me is you are on a loser but i have made 5 good offers that have been revoked.What do you think i should do next

Marilyn Stowe - December 26, 2013 at 10:40pm

Dear Neil
I don’t know the facts because you don’t tell me. In particular I don’t know if you had children together and why your father would want to gift one half of the property to your girlfriend. I think to make sure you should ask to see a barrister who specialises in this type of case and explain exactly what happened and why your father decided to do what he did, the circumstances surrounding his decision and the basis on which he made his decision. I don’t understand why he would want your ex to benefit because you could have made a will leaving it to her. If your father instructed a solicitor at the time the file may prove helpful. But on the face of it, if she owns half, then she is entitled to it.
However, when she left, what was understood to happen? What agreement was made? What did she say and do? What did you think would happen? Why has she come back now? This might be an area to explore.
Try and remember everything that happened very carefully and in detail and get a good barrister’s opinion.
Regards
Marilyn

Heather Higgins - January 2, 2014 at 5:55pm

My daughter and her boyfriend who have a joint mortgage on a property split up in early 2013. It was agrred that she would move out of the property and that he would take in a lodger to help with the payments. He has not done this. My daughter has relocated and is now paying rent on a property as well as continuing to pay her share of the mortgage. She paid the deposit on the mortgage and would like to protect her interests should the property sell and some profit be made. She has been advised either to force the sale of the property or to continue paying the mortgage. Is there any way she can protect her interests and stop paying the mortgage?

Jane - January 3, 2014 at 3:51pm

Hi Marylin!

A joint tenancy was severed by my aunt on my father i.e. notice served (although only contains one signature from uncle) for a property that they both owned and lived in. My father took the notice with him but never signed it, hence it was never registered with Land registry. He recently died and my aunt would now like to formally record the severance with the land registry so that I can legally inherit my Father’s half as part of his estate. Can she just send in the notice with the Sev 1 form? Thanks Jane

Georgina - January 4, 2014 at 12:35pm

What a wealth of information this site has, thank you Marilyn for your time to help.
Am divorced and my ex husband has now re married but we still have no consent order. He has stated that I can continue to live in FMH until our son is 18 (now 14) I am paying the mortgage currently but cannot secure the loan myself due to my wage. I have 4 years to get a better wage to remove my ex from the mortgage. My worry in the immediate is that we are joint tenants and if I were to die the house goes to my ex husband. If I severe the joint tenancy can I then leave my half to my son? But what happens if I severe joint tenancy and my ex dies first? He will of course left his half to his new wife, so what will happen then?

Thank you for your time.

Marilyn Stowe - January 4, 2014 at 5:10pm

Dear Georgina
You need to get yourself sorted out properly. If you haven’t had legal advice about your financial settlement, take it. Are you sure this is the best deal for you? Instead could you get a transfer of property order for all or more of his share without a payment?
If all is well, shouldn’t you get a court order to put it beyond doubt? If it isn’t, shouldn’t you do a different deal or go to court to get it sorted out?
It looks as though you should sever the joint tenancy anyhow and register with the land registry, and also register the court order when it’s made. You should also make a will leaving your share to your son. If your husband dies before a court order is made you could potentially have a claim against his estate anyhow under the Inheritance Act 1975 as might he against yours.
All this requires some good personal advice from your own solicitor. These are pointers which please go and get explained to you and advised upon, because I don’t know enough about your case to advise you.
Regards
Marilyn

Ben Patchett - January 6, 2014 at 12:10pm

My Partner and i Split 8 months ago.she left the property and signed the house over to me and she was removed from the Land registry.leaving me the owner of the house..when i File for divorce will i have to give her half the house Still??

Marilyn Stowe - January 6, 2014 at 2:06pm

Dear Ben
You would argue that this was part of, or all of the settlement – you don’t say exactly what happened. Its hard to argue against, unless there was fraud or duress.
Regards
Marilyn

Georgina - January 6, 2014 at 1:13pm

Thank you for your reply. Regarding court, he has a solicitor and always has, I have self repped all along as there is no way I can afford a solicitor. There is only the FMH which has approx £30,000 equity. Ex took £10,000 with him from re mortgage, done just before he left. My pension better than his and my worry if we went to court is he will take some of that. It’s not enough for me! I fear a judge will think I am wasting the court’s time as ex has said he wants nothing just releasing from the mortgage, but if I take him to court he will go for everything.
Again thank you for your time.

Marilyn Stowe - January 6, 2014 at 2:05pm

Dear Georgina
Uttering threats means absolutely nothing. The court will do what is right and fair first consideration being to the children of the family. The court will look at reasonable needs of both parties and order accordingly. If he can afford a solicitor, why cant you? Why cant he contribute to the cost?
All I can do is repeat again, take legal advice to determine your position. Don’t regret it later when its too late to do anything about it.
Regards
Marilyn

Georgina - January 6, 2014 at 9:36pm

Many thanks for your advice.

Sam - January 7, 2014 at 2:16am

Dear Marilyn,

What happens if a husband commits adultery and the wife is planning to file for a divorce, she also want the whole house which is a joint tenancy. She has a child. What are the chances of her getting the house or how should she proceed with the issue if she wants the house even if she has to pay for it.

Marilyn Stowe - January 8, 2014 at 5:34pm

Dear Sam
The adultery wont affect financial provision. If the wife wants the whole house she has to demonstrate that her claim is fair, she reasonably needs it and how she can afford to stay there perhaps with financial assistance from her husband for her and the child. It will depend on their overall financial position but first consideration will be for her and the child. She should issue a Form A in the divorce claiming a transfer of property and all the other financial remedies available to her. My strong advice however, is for her to see a solicitor straight away.
Regards
Marilyn

ELLIE - January 7, 2014 at 12:18pm

Dear Marilyn, my ex husband of 5 years lives abroad and I am trying to get my housing association to remove him from the tenancy so i can have sole tenancy. They will only do this if he signs a surrender of tenancy form and sends in a copy of his passport. He will not do this. I cannot afford a solicitor and apparently Legal Aid don’t cover this. What can I do? Really appreciate the advice. Thank you

Marilyn Stowe - January 8, 2014 at 5:31pm

Dear Elaine
You will need to apply for a transfer of property order within the divorce proceedings. I assume your property has a value which is why he wont sign? Issue a Form A and if you need any other financial relief, claim it at the same time. When he sees you are serious the chances are he will change his mind and sign the form. If he doesn’t, complete a Form E file it and serve a copy on him, you will need to complete a Chronology, Questionnaire if appropriate, a Statement of Issues then go along to the court for the 1st Appointment explain what you want and see what the Judge decides to order for your claim to go forward. Have a look at my blog and my book for more information but overall please try and see a solicitor for your own detailed personal legal advice. I can only give you a brief guide.
Regards
Marilyn

pauline squire - January 9, 2014 at 7:25pm

hi, wonder if you can help, i am tenants in common with equal shares, i put in £80k and my ex £135, by agreement, i did alot of the work to the house whilst he paid for the major works, he has a mortgage of £22, we are putting the house on the market but he is now demanding that he gets back all that he put into the house and also threatening to up the mortgage to cover any solicitors fees to fight getting his money back, can he do this Regards Pauline

pauline squire - January 10, 2014 at 10:43am

i will add that we separated last feb (2013) and were not married

Luke - January 10, 2014 at 4:32pm

“he is now demanding that he gets back all that he put into the house and also threatening to up the mortgage to cover any solicitors fees to fight getting his money back, can he do this”
=====================================

I hope so, it seems fair to me that you should both get back what you put in – unless the value has not gone up accordingly. Don’t you think so ? Why would a reasonable person even fight over this ?

If you were married of course you could screw him for more money if you wanted to but that is obviously not the case here as he was not financially foolish enough to tie the knot.

ANNE - January 13, 2014 at 1:17pm

My daugher and her long term partner have recently split (nearly 10 years together) and they are joint tenants with, over the years, the equity being provided by his parents. Their first property they were tenants in common(twothirds/one-third) and the current property was purchased as joint tenants as they subsequently got engaged and were going to be married. There was no Declaration of Trust. The equity is approx £200K. He basically does not want to pay her anything, but she gave up a very secure job to be with him, reinforced by their engagement. Any suggestions?

Marilyn Stowe - January 13, 2014 at 1:28pm

Dear Anne
The difference between owing jointly as joint tenants or tenants in common becomes relevant on death of one of the parties. The deceased person’s share will either pass automatically to the other if they own as joint tenants or as it is left by will, if they own as tenants in common. A joint tenancy can be severed if one of the joint tenants changes his or her mind and prefers to leave their half share elsewhere.
It doesn’t affect either of their entitlements to half the net proceeds of sale.
If it is now being suggested your daughter is not entitled to her half share it would be up to her ex to establish why and the likelihood is it will be an uphill struggle in the absence of any documentary evidence to the contrary. On the face of it, she owns half the property outright and is therefore entitled to half of the net proceeds of sale.
Tell her not to panic and she should take her own legal advice, because obviously I don’t know the facts.
Regards
Marilyn

ANNE - January 13, 2014 at 1:36pm

His rationale is that his parents are now saying the equity was a ‘loan’ from them, even though this was never mentioned and no repayment terms discussed?!

Marilyn Stowe - January 13, 2014 at 1:42pm

Dear Anne
Given the previous home was owned as tenants in common with a declaration of trust it seems to me there had been a change in your daughter’s favour and the solicitor’s conveyancing file might evidence a discussion about ownership. Furthermore if the parents had wanted to protect their interest they should have taken a second mortgage over the property.
Regards
Marilyn

ANNE - January 13, 2014 at 1:46pm

Many thanks for your comments!

Dave - January 16, 2014 at 7:49pm

hi, me and my partner both own a property we bought last year which i have been paying all the mortgage for as she’s out of work. we have 2 step kids together and our own 2 year old son too. she’s offered to sign the whole house over to me if i re mortgage it and give her her deposit back. after valuation we had theres atleast 60k equity in property maybe more if i can finish renovating it. what i want to know is if i take on mortgage myself with a new mortgage can she change her mind when i sell the property and demand half the equity as we have a child together? also if she signs it over to me can we draw up our own document which we both sign to say i fully own the property myself and any profits made from it when i sell are mine?
many thanks for your advice in advance 🙂

Marilyn Stowe - January 17, 2014 at 12:41pm

Dear Dave
If you aren’t married then there shouldn’t be a problem as far as each of your are concerned. The property can be conveyed to you in exchange for a payment and you can agree in writing that it is in full and final settlement of all claims either of you have against the other in respect of your cohabitation. However she could still apply for a settlement for your child under Schedule 1 The Children Act 1989 now or in the future.
If you are married then you will need besides the conveyance into your name, a court order in the divorce setting out the financial agreement you have made in full and final settlement of all claims.
Regards
Marilyn

Tracey - January 17, 2014 at 12:06pm

hi if my mum and my step dad held joint tenancy on the house, then they divorced, and now my mum has passed away, leaving her half of the house to my older sister. my step dad is claiming the house is all his now. is this right or not?

Marilyn Stowe - January 17, 2014 at 12:45pm

Dear Tracey
If your mum and step dad owned the property as “joint tenants” and not as tenants in common, then on death the deceased’s share automatically passes to the other. A joint tenancy may be considered in some circumstances, to have altered to a tenancy in common. Your sister should see a solicitor straight away because she may still have a claim on that basis or against your mum’s estate which will include her half share of the house, under the Inheritance (Provision for Family and Dependents) Act 1975;- as might you too. Check it out.
Regards
Marilyn

John - January 23, 2014 at 5:14pm

Hi, My partner (we weren’t married) sadly passed away recently. She filled in the divorce papers as she had been living separately from her legal husband for over 2 half years. The Husband was even happy enough to give some money towards the divorce being processed. The forms were never posted before her death, yet we still have the forms.

Can these forms still be submitted if the husband is not going to contest the divorce? as by default as they were still legally married, he is next of kin therefore managing probate, yet there might be fair reason to have someone else in the family managing the probate, therefore wishing to contest the probate. If the divorce gets processed then probate could up for debate?

Thanks

John

Marilyn Stowe - January 23, 2014 at 5:39pm

Dear John
First I am very sorry for your loss and hope you are ok. I’m afraid death ends any prospect of a divorce process. So your partner passed away still married and her estate will pass as she left by will or under the Intestacy rules. The same applies to the appointment of someone to obtain probate. However all is not lost. You need to see a solicitor to consider a claim under the Inheritance (Provision for Family and Dependents) Act 1975. Don’t delay.
Regards
Marilyn

Lee - January 24, 2014 at 3:52pm

Hi, I wonder if you could shed some light on our issue. My husband still owns the house he and his ex wife bought while married. She put down the deposit and when bought they agreed that if it were to sell, it would be split 50/50. They got divorced and as they have a child together he continued to pay his share of the mortgage for a year after he moved out until her new partner(now husband) moved in. As there are now additional children and both are remarried, does he have a right to force the sale and would he still be entitled to 50/50 split seeing as she’s paid the mortgage for the past 3 years solely? We’d like to buy our own home for our new family but can’t as he’s in that mortgage and deeds and would need his share of the equity for our deposit.
Thanks in advance!

Marilyn Stowe - January 26, 2014 at 12:52pm

Dear Lee
Yet another example of being an ostrich when separating/divorcing. Agreements need to be turned into consent orders!
Your partner can certainly apply for a sale potentially in TOLATA proceedings if he can’t in divorce proceedings for technical reasons if he was the respondent and is now remarried. Given the re marriages it does seem high time it got sorted out. There is power to postpone a sale and credit given for equitable accounting and occupational rent on either side. And he may be able to plead the agreement he reached. Sorry about the legal jargon but his solicitor will understand what I mean so suggest he sees a solicitor pronto who can explain which route to take.
Regards
Marilyn

John - January 24, 2014 at 5:18pm

Thanks very for your reply Marilyn, as I can appreciate you are very busy on here. The only reason I asked the query around the forms is that the forms were signed and dated before her death, but never were posted. Finally, although we both had a baby together, we were never married as she was still married, and had a child with the father she was married to. Although my child has my surname, and we registered the chid on the birth certificate under my name, does the married father still have potential rights to my child? ideally, we should have processed the divorce, but we never thought we would ever be caught in this position. Thanks again for your feedback.

Marilyn Stowe - January 26, 2014 at 12:46pm

Dear John
You are the baby’s father and having signed the birth certificate you have parental responsibility. Your baby has a claim against her mother’s estate so please as I suggested last time take legal advice.
Regards
Marilyn

William Neal - January 26, 2014 at 4:32pm

Hi Marilyn,
My daughter left her partner 3 yrs ago. They were never married and had a daughter who is now 10yrs old. When she left him they had a “tenants in common” status on the property that my daughters ex partner still resides in. At the time, he refused to allow her access back into the property, refused to have it valued, refused to buy her out and refused to put it up for sale! My daughter sadly died last week . Now her ex-partner, because he is named on the birth certificate and has parental responsibility to their daughter who is still a minor, and she is next of kin, is trying to administer her estate? Their daughter has never lived with either of them since a baby…living instead with his sister! He knows that she has private pensions. However she was heavily in debt…her only asset being in the house, which he still lives in. My only concern is my grand daughters legacy in the house value and more to the point will she ever see a penny of it? I asked him can i administer her estate…address her debts etc etc. jointly with him. He has refused. The property in question also has land restriction notices placed on it by the credit card company ( 2 in total) in my daughters name. We have also had debt collectors correspondance coming to our address on behalf of HMRC. We just want to wind our daughters affairs legally and properly… but know that this is not going to happen because of her ex partners behaviour. He is looking to make some money from this. She was penniless when she died.
Can you please advise Marilyn

Many thanks…..

Marilyn Stowe - January 26, 2014 at 5:52pm

Dear William
I am sorry for your loss. You and your wife are entitled to apply for a grant of Letters of Administration in relation to your daughter’s estate if she passed away intestate ie without leaving a will. Her ex partner has no right in law to do so and you are the next blood relatives. If she has left a will then she will have named executors.
Under the rules of intestacy your daughter’s entire net estate has passed to your grand daughter in a trust until she attains 18 unless a will leaves the estate elsewhere. I think you should take legal advice straight away.
Regards
Marilyn

Janet Richardshon - January 26, 2014 at 6:36pm

I am in the process of a divorce. My home for myself and two children was a council property which I had since 1998. I met my partner in 1993, we got married in 2003. We, at that time, bought the council property with a discounted rate from the council. My partner contributed to the mortgage at this time, I paid all the household bills. We have since split up, having paid the mortgage and household bills since the break up.
Please can you advise what rights my husband would have as we are going through a divorce,mediation is out of the question as there has been so much going on. Would he have the rights of just what he has paid in or would he be able to obtain half of the house if I were to sell the property.

I would be very grateful if you could help me with this If you have any other questions please let me know I can answer them for you.

Marilyn Stowe - January 27, 2014 at 12:03pm

Dear Janet
A few thoughts and you will see why I cant answer your question right now:-
Is there a typo, do you mean you started to live in the property in 1988 and had children before then? How old are they now? How old are both of you? How long did you live together before getting married and who paid the bills? Do you have any children to your present husband? How much did you pay for the property and how was it paid for i.e. who paid the deposit? What is it worth now? Who lives with you? What kind of property is it? Is it reasonable for you to want to stay there and why? How much could you afford to pay if he were to get half?
Are there any other assets? Do you both have incomes and pensions? How much are they? When did you split? Where is he living now? What are your reasonable needs in terms of income capital/housing/pension going forward and how do you think the assets and income should be split?
Regards
Marilyn

Paul - January 29, 2014 at 2:49pm

We divorced in 2012 and we are now selling our Joint tenancy house, The split is roughly 60/40. It is owned outright with no Mortgage on it. The proceeds will go towards us each buying new properties, do either of us have to pay any kind of Tax on our split i.e Income tax/Capital gains tax etc?

Marilyn Stowe - January 29, 2014 at 3:51pm

Dear Paul
Sorry Im not an accountant!
Regards
Marilyn.

lynn - January 29, 2014 at 3:10pm

Dear marilyn,
I have a very complicated problem but i will try to simplify it as best i can.
My husband and I separated almost 9 years ago after he left me for another woman, they live together.
I stayed in the mortgaged matromonial home( interest only)
Ex has paid mortgage and generous contributions to bills and has always stated that the house is mine to do what i want with there is currently approx £60,000 equity.
Ex is likeley to have his business liquidated as now owes almost £100,000 to HMRC.
also i believe he has huge personal debts and also owes a huge amount to his directors loan account so will be personally liable for alot of debt.
My questions are :-
A) can they come after the equity in the house? whether all of it or just his?
I have been advised to apply to sever joint tenancy on mortgage.. do i do this on my own or ask him to apply with me?
I have 2 children under 18 at home with me and i have been refused a mortgage on my own merit because his maintenance payments will stop as will my working tax credit when they reach 18 so i will be forced to pay exhorbitant rates of private renting which will see any share of my equity eaten up within 2 years.
B) if i had to go to court to fight for my half, or if i went on to divorce him before the liquidation would i maybe be allocated more than 50% seeing as though i have the childrens needs to think of.
He is currently thinking of a manner of ways in which the equity ( which he has just found out how much its likely to be) can now help get his business out of trouble but i do not want to loose anymore as he already remortgaged for 30,00 some years ago and put it in a company to pay off tax debts and that company was sunk loosing it all.
I am having sleepless night worrying how to house my children and myself and as he has stopped paying the full amount he usually gives, which may this week go down to ) if the company is forced to close. I work part time and im using all my wages and tax credits to meet the shortfall so theres nothing left to pay a solicitor to help me at approx £160 an hour!
If you have any advise at all I would be gratefull as I have seen how helpfull and informative you are to others.
Regards Lynn

Marilyn Stowe - January 29, 2014 at 3:50pm

Dear Lynn
The best advice I can give you is to get to a good solicitor as fast as you can and get a court order transferring the house to you if you can. You will be able to discuss the entire situation in depth with your solicitor. You have some good points and this is yet another example of the need to act at the time rather than leave things drifting.
Regards
Marilyn

Bridget Marian Bradshaw - January 29, 2014 at 3:24pm

Hi, my brother was involved in a Road traffic accident in 1992,was left brain damaged and resided in nursing homes until his death in Nov 2013. Since the accident I have looked after his financial affairs. His wife divorced him in 2004. She has never taken my brothers name off the mortgage and his name is still on the Land Registry. My question is : the ex wife has a ‘tenancy in common ‘ would this mean that his two sons would be liable for any benifits from the sale of the house were she to sell it? They are both in their 20s and the eldest has never resided anywhere other than this house. The youngest has moved out a few times but has recently moved back, thy both have contributed to the running costs of the house.

Marilyn Stowe - January 29, 2014 at 3:44pm

Dear Bridget
It seems as though the house remained in the joint names of the parties. If the property was owned as tenants in common your brother’s shares passes either as he left it by will or under the intestacy rules ie to his children. They as owners of the half share will have to agree what happens next. They can seek a sale or buy out their mum or she can buy them out.
If the house was owned as joint tenants, the boys may have a claim on their father’s share under the Inheritance (Provision for Family and Dependents) Act 1975. They need to take fast legal advice on this however.
Regards
Marilyn

Bridget Marian Bradshaw - January 30, 2014 at 11:31am

Thank you for your reply , my brother was never able, due to his brain damage, write a will, but I’m right in saying that his sons still benefit from the house if it was sold? And can you explain why you believe they need to take “fast” legal action please?
Bridget

Marilyn Stowe - February 1, 2014 at 8:47pm

Dear Bridget
They probably own half the house. The reason they must act is there is a time limit of six months from the grant of probate to make the application if it’s contested. In legal terms it’s not a long time.
Regards
Marilyn

claire donoghue - February 10, 2014 at 11:01am

hi i need help for my nan? she brought her house with her husband and son, The husband has now passed away so his share went straight to my nan she owns 3 quarters of the house and her son owns a third. He is talking about selling the house and her going in to sheltered housing which she really dosnt want to do and its getting her really down that she is going to lose her home. Can he sell the house without her permission and go above her head. She owns more of the house and is 77 years of age pls help?

Marilyn Stowe - February 11, 2014 at 3:12pm

Dear Claire
The court has power to order a sale but also has power to postpone it on such terms as it deems fit. Your nan needs to go and see a solicitor who can write to her son and put him in the picture.
Regards
Marilyn

Toni Barker - February 18, 2014 at 10:37am

Dear Marilyn,

I am in a very complicated situation. I had been with my boyfriend for five and a half years. He died two weeks ago.
He left a will making me beneficiary and executor. He was still married but had not lived in the marital home for more than five years. I sold my property 7 months ago and we were due to exchange on a house last week. This purchase has now been stopped as I can’t afford it on my own.

He had a joint tenancy on the marital home with his wife and his proceeds from the sale would have been added to my money from my house to purchase our joint property.

I am aware that his wife legally should keep all the proceeds now but I just wondered if you would advise making a claim for the amount my partner would have received as this whole situation leaves me in a bit of a mess financially.

Thank you

Toni

Marilyn Stowe - February 18, 2014 at 6:52pm

Dear Toni
Although they may have owned as joint tenants that may not be the end of the story. You may be able to make an application for provision under the Inheritance (Provision for Family and Dependents) Act 1975 and his half share could be transferred to you. See a solicitor.
Regards
Marilyn

Luke - February 18, 2014 at 5:23pm

“He left a will making me beneficiary and executor.”
====================================

I don’t understand why his wife will get all the proceeds now ?
It may be complicated by who has been paying the mortgage for the last 5 years but as his beneficiary I would have thought you would stand to gain at least part of it.
Hopefully Marilyn will give you advice although I suspect she will recommend that you see a lawyer immediately.

Andrew - February 18, 2014 at 5:51pm

If they were joint owners on the face of it his wife will scoop the pool; but as Marilyn will explain Toni may have a remedy.

Sarah - February 18, 2014 at 7:25pm

Hi can you help me how do I stand on stopping my brother taking my mothers half of her house in the event of her death, they have a joint mortgage together.

Marilyn Stowe - February 20, 2014 at 12:11pm

Dear Sarah
Your mother needs to sever the joint tenancy in relation to the house and make a will. A solicitor will take her instructions and advise her more fully.
Regards
Marilyn

Mathilde - February 18, 2014 at 10:24pm

Dear Marilyn
My man moved into my house in 1994 and 9 years later we took out a joint mortgage to buy property abroad and I gifted half my house to him, on condition it reverted to me if we split up.
We married in 2007 and split up in 2011. in our 16 yrs together he only contributed a third of household costs including mortgage for 4 years.
He has agreed his share should revert to me on divorce but we have no credit and I cannot remortgage in my sole name. We have frozen unsecured debts in each of our names and although he agreed to deal with his creditors he has not and they are threatening to place charges on my house.
I effectively gave consideration for his equity by giftng him the proceeds of a foreign property we sold. We are still joint owners of my house- my solicitor is drafting the divorce agreement but although ex is ambivalent about leaving his name on mortgage I cannot see a way of getting him off the title and protecting my house from his creditors. I would be very grateful for your thoughts.

Marilyn Stowe - February 20, 2014 at 12:01pm

Dear Mathilde
I think a court need to deal with your claims for a transfer of property order as soon as possible.
Regards
Marilyn

Mathilde - February 21, 2014 at 1:47pm

Thankyou Malilyn; will a court order override any claims from creditors? And can the mortagee still refuse to allow transfer of his title?

Andrew - February 21, 2014 at 10:05pm

You gave half your house to him – why should that half be protected form his creditors?

Creditors have rights and I am irritated by the Victorian novel attitude that they are the enemy to be kept at bay and deprived of what is theirs. Marriage is a partnership and when a partnership breaks up the outside creditors have a better claim to th4e assets than the partners, who must make do with what is left.

It sounds old-fashioned but is none the worse for that. Common honesty is never out of date.

Mathilde - February 24, 2014 at 12:58pm

Thank you Andrew – I wish all men were as honorable as you. I was actually asking Marilyn for advice in my distressing situation.

Drew - February 24, 2014 at 9:50pm

Hi,

I am about to send Notice of Severance of Joint Tenancy to my ex partner who we both own our property with – I am doing this independently of solicitors & have drafted the appropriate correspondence.

My question is that if I server the papers, and my ex refuses to sign them, what options do I have to sever Joint Tenancy?

Thanks

Sarah Nixon - February 25, 2014 at 12:11am

Dear Marilyn,
I was living with my husband in a council flat allocated to both of us in Birmingham. 2 years after allocation, my husband left the country (England) and went back to his native country in Africa where he lives and has his separate property. Subsequently right to buy documents were issued in our joint names and he came and signed. We got a mortgage jointly to acquire the property but it is only me that has serviced the mortgage since 1996. I remortaged the property and signed on his behalf with his consent. In 2008 I realised he was having an affair and the marriage broke down. No divorce yet. But he has filed a county court case and now wants to sever the joint tenancy and says the mortage should be put on my share only. He now denies ever consenting to the remortage. MARILYN, does this man really have a beneficial interest in the equity? People say he has a 50% interest by virtue of his name being on title. My solicitor seems to agree and will not hear anything about implied trusts and rebutting the equal beneficial ownership presumption. PLEASE ADVISE!

E - February 28, 2014 at 4:51pm

Marilyn,

I hope you can help me as I am now am in despite situation
I meet my husband in 1976, at this time he was married and him and his ex wife owned a flat. when the property was sold the proceeds of the sale was split %50/50 and his share was £450. At that time we decided to buy our first home together, so we set up a joint building society account. I sold a Diamond ring that I had bought as an investment for a sum of £400.00 and both these monies were deposited into the building society, these monies were then used as a deposit and the solicitors fees. In 1979 we were married and we have always had a joint bank account and joint mortgage. In 1986 we bought our current home for 45500.00 and until 1989 we both earned equal amounts. In 89 my husband went contracting and set up a ltd company where is was director and I was the company Secretary and joint shareholder. The monies from this account were paid out as a small salary to my husband and any further monies were distributed to the share holders ( My Husband and I) and deposited into our joint account, I was still working full time on a good salary. In 1992 we had our son and I finished work and then I was paid a small salary from the business for doing the accounts ect. In 1995 we were feeling the pinch and I went back to work working Partime in the Evening and worked for a farmer one day and all day Saturday at my partime work. I did this until our son went to school when I went from nights to days. In 1998 my husband dissolved his ltd company all liabilities were meet. He went to work for an composite company (umbrella) where he was paid the minimum wage for the hours he worked. the remaining fees were paid by dividends to the shareholders (both of us) were paid into our joint account. In 2005 my mother got offered a bungalow from the council so we bought the property from her, By re mortgaging our home by way a mortgage facility of 182.000.00 with our bank .
We drew down 50k in the first instant to pay off our existing mortgage of 38k to the Halifax 5k that was owed on a credit card and 5k overdraft. We then drew down a further 90k to purchase Mums house and had enough to modernise it. It has been let out for the past 7 years. After we remortgaged mums house for 110k on an interest only bases, those funds were deposited into a reserve joint account that is linked to our home mortgage. We then went on to buy a further property with the intention of letting but the interest rates had gone really high, so we decided to sell the property after we had owned it for 6 months . we got 139950 for the property but after estate agents and solicitor’s fees we received approx. 137k which again went into the joint reserve account. In jan 2007 I took redundancy from work which was not a lot but equivalent to 12 months net salary and was able to sell my share scheme shares. both these were put in our joint account.
In March 2007 my husband left the composite company and set up his own Ltd company again with him as director and me as company secretary and both of us as being joint share holders with both of us earing a small salary. we also in 2007 my husband purchased a car for himself 16k and I purchased a car for 6.5k for myself, then paid off a bank loan which for my husbands previous car. in 2008 we brought another property for 152500.00 , this was purchased with the remaining funds in the reserve account and we drew down the balance on our facility and borrowed 7.5k from my mum. we sold this property in jan 2010 for 178k after fees we received approx. 175k we then paid back mum 8k for the loan and loss of interest. we also purchased a car for our son for 4.5k and on his eighteen we purchased a private plate for 1k .
in July 2010 I suspected he was having an affair which he denies. I then started to notice that there were lots of small things were happening around the house kitchen cupboard doors going out of line hearing, traffic noise from the double glassing, the conservatory leaking Damp pages on the bay ceiling, bannisters that have become a bit wobbly as they have now got screws missing, I used to dread coming down in the morning. In Sep 2010 I noticed that the bank that every time I went into the bank they be reading something on the screen before they would ask what they could do for me they would them deal with me put the chits in the till but then also make a further note on a separate piece of paper as if they need to do something with it later. it got to a stage where I would no longer get cash out of the account. things went from bad to worse because he got physical and on the 19th April 2012 I call the police out. the bottom line is he left the home that night . in march 2012 just before he left the hourly rate for services provided between the ltd company and the client was increased by 7.50 hour approx. 311.25 a week . it only this extra money that has enabled to keep our heads above water. in December 2013 the accounts had to be formalise for year end of march 3013 and personal tax returns done for the revenue. In the accounts the accountant had included 45k as divi of which 9k had not been paid out.
so on our personal returns 22.5k was put on both our returns that were sent to us for authorising . which we did. when I asked the accountant about the the 9k as he had classed it in the accounts as the directors account he said it up to us how it is paid out .
Out of this I feel very strongly we have been married for 32 years and to me all our assets belong to our son and wish to protect them. As the person is 12 years his junior and has a child of her own. It is my belief that they are living together and her salary is more than 30k why should I if I have enough to buy a house I would then have to rely on income support which I have never done in my life.

house home est value 375k
house let est value 150k
mortgage home 152k
mortgage let 110k
reserve account 150k
current account 1.5

business account 21k

Please can you help me I am sick with worry.

regards

Elizabeth

MD - February 28, 2014 at 5:14pm

Hi Marilyn,
My ex husband and I are joint tenants for a council flat. Due to domestic violence I ha to flee the house with my son but had to move back in after 4 years because u got evicted from the property I was living at after fleeing the family home . Ian now living in the family home with my two children and new husband and my ex his band is living in the same house with his wife and step daughter who recently arrived from India. He has served me with a transfer of tenancy under family law act notice on the 21 of February 2014. I don’t want to move with my kids as my son goes to the same school for the past 7 years and it’s around the corner and we have friends luving around here. How do I respond to his notice ? I am representing myself a I can’t afford a solicitor.
Thank you
Marian

EW - February 28, 2014 at 6:14pm

Dear Marilyn,

My sister bought her house in 2002 with proceeds from a previous sale. She put down 50,000 and took out a 91,000 mortgage with her then partner. He paid the 500 / month mortgage for 8 years and she paid all the bills. They had one child together. They split up in 2010 and he left the country. Since then she’s paid interest only on the mortgage, but now she’s 3,000 in arrears and the bank is threatening to foreclose. He has not paid any of the mortgage for the past 4 years. Added to the complication, she is mentally ill and is on income support. In order to save her house, we want to help her sell it, but fear that we’ll need his signature to do so. In the past he has asked for 20,000. However, the house is in disrepair and will probably only fetch about 140,000 instead of the market value of 175,000 (guesstimate), so the profit would be around 50,000. That’s about how much she put in as a down payment herself. My question is a) is he entitled to 1/2 of that and b) can we force a sale if he refuses to sign any documents. We’re in such a dilemma as we worry that she’ll be thrown out with nowhere to go and she’s mentally not able to deal with it. Thanks for your advice!

keith buckmaster - March 5, 2014 at 12:38am

my sister has lived in her house for 42 yrs, 10 yrs ago she let her partner have half of the house. he left her 7 yrs ago and now hes dead. the partners children are now asking her to sell the house so they can have there half that there dad left them in his will. please can you tell me if they can force her to sell

Phoebe Turner - March 7, 2014 at 9:49am

Dear Keith

Marilyn has asked me to reply to your question. I am a solicitor at Stowe Family Law’s London office.

This depends on whether the property was owned as Joint Tenants, or as Tenants in Common.

If your sister’s house was owned by her and her partner as Joint Tenants, then your sister’s partner would own 50% of the property, and upon his death his 50% share would automatically go to your sister.

On the other hand, if the property was owned as Tenants in Common, your sister and her partner could own the property in unequal shares (i.e. not 50/50). If the property is owned in this way then upon your sister’s partner’s death, his share will not automatically pass to your sister, but will pass on to the beneficiaries as set out in his will. If your sister’s partner did not have a will then there are particular rules regarding intestacy which will need to be looked at carefully, but it may be that your sister’s partner’s children will benefit from his estate in any event.

Based on the information you have provided it appears that your sister and her partner may have owned the property as Tenants in Common and if that is the case, and your sister’s partner’s children are the beneficiaries of their father’s share in the property, then they can force your sister to sell the property.

However, this is only a brief summary based on the few facts you have provided and your sister should seek independent legal advise so that she can get advise tailored to her individual case.

Gemma - March 7, 2014 at 11:01am

Hi Marilyn.
My husband separated from his wife in 2006. She received her monies from the property straight away. In oct 2008 they started divorce proceedings at the time my we lived at the property with his son from his ex wife and our two children. My husbands ex wife wanted more money from the property but the solicitors informed her that she couldn’t has she had already been payed out. So she changed their child’s routine so that we can only have him 2 nights a week, she also put her name on the properties land registry. I was just wondering if I could remove her name. Has this house is our family home with our children.
Thank you

Gus - March 7, 2014 at 8:06pm

Hello Marilyn,
My brother protected his interest in a property owned with his now ex- gf in a deed of trust. His percentage share is greater. He alone paid off the mortgage but he also recognised his responsibility to the ex-gf and their two boys by gifting her a generous percentage share. Can the ex-gf now nullify this protection by citing Sched. 1 Children’s Act ?
This implies long term financial costs for my brother in the form of huge financial demands for property ,cash ect by his ex-gf made on the the boys’ behalf but ultimately benifiting herself financially at virtually no cost,detriment or financial loss to herself .

In fact she is also expecting another man’s child and therefore claiming for that child and its father by proxy !

Are my brother’s interests protected or not ? If not how can he do so and meet his obligations to his own children ?
He really worked hard to pay off the mortgage and thought he’d acted responsibly for the benefit of their whole family –
Many Thanks.

Name Witheld - March 9, 2014 at 12:31pm

Dear Marilyn
My husband and I own our house as joint tenants. He is involved in a civil dispute which might result in litigation. I want him to settle it but he has said that he will fight it to the end. No legal proceedings have been issued yet. My worry is that if he does fight it all the way and he loses the case it could wipe him out financially. My question is if he loses could they force him to sell our house to pay them? and could they take all the equity that we have, including my share?

Emma - March 9, 2014 at 4:12pm

My husband and I separated a few years ago and he died before we divorced, he made his mother executor of his will and we are not on good terms.
We jointly owned a house and I believe he left his half of the house to our joint children in his will. I have the title deeds and they are in his and mine names. I live in the house with our children (15 and 18 years) and would like to move house with them and buy their share of the house.
Who’s name should be on the title deeds?
If i buy the children’s share from them then does this deal have to through the executor of his will?
Regards
Emma

Nick - March 9, 2014 at 6:07pm

Hi Marilyn,

I paid off my mortgage alone and am now on a very modest salary. I have two children with my ex-partner and I’m trying to buy out her minority share (most of which I gifted anyway), as she doesn’t want to stay living in the house.

But now she’s claiming that its not enough for her to buy elsewhere and is asking for even more. But I’ll already be maxed out on the mortgage and have minimal savings. Where do I stand? Can I be forced to sell-up and rent a room somewhere? If so would this effectively be giving her another ‘gift’ or would it be on loan until the youngest turns 18?

Surely it’s reasonable to expect her to get a part-time job to supplement her already sizeable deposit, or rent even? I simply can’t afford it on top of maintenance and need a place for the kids to stay when they’re with me.

Many thanks,
Nick

Withheld - March 9, 2014 at 10:42pm

Dear Marilyn,

Please can you advise.

My wife and I have been given a 1/4 share each on a property with another 2 relatives, so we all have an equal share and are tenant in common. My wife and I live in the property with our 3 year old daughter. Regrettably the relationship has broken down with those who gave us share of the house and we are being asked to put the house up for sale or they will move in with us. My little girl and wife are getting distressed when they come around shouting and the thought of them moving in is causing anxiety, we are being harassed by them. We would like to move out but cannot financially do so at the current time. We are of the impression that they can apply to the court to force us to sell, is this the case? I’m also under the impression that we can apply to the courts to prevent sale for a period of time. Can they just move in? Could I get a court injunction out against them to prevent this harassment and them moving in?

This has been going on now for almost 2 years and my wife is bordering a breakdown and my little girls behaviour is becoming worrying.

Marilyn Stowe - March 10, 2014 at 2:15am

Dear “Witheld”
See sections 14/15 TOLATA
http://www.legislation.gov.uk/ukpga/1996/47
Regards
Marilyn

K - March 11, 2014 at 4:48pm

Hi,

My Step-father recently died without a will, and since he and my mother never married, his property has been divided between my step sister and half sister (his biological children).

My half- sister is only 15 years old and therefore the house is being held in my mothers name in trust for her. My step-sister (who is 30 and did not live at the property) wants to sell the house and use her share to pay off her own mortgage, which would mean that my mother and sister would have to move out of the house in order for her to do this. My half sister does not want to leave yet, and my mother would rather not make any decisions on her behalf, and would prefer to wait until she is 18 and can decide for herself. Can my step-sister force a sale? Also can my step-sister legally charge my mother rent for her half of the property, even though my mother’s name is on the deed (in trust for my half-sister)?

Anonymous - March 13, 2014 at 7:31pm

Dear Gemma
Marilyn has asked me to reply to your question. I am a solicitor at Stowe Family Law.
I assume that the property is held in your husband’s sole name but that his ex wife has registered a notice against the property preventing him from disposing of it without her being notified. This makes it very difficult for the property to be sold.. If his ex wifes financial claim is settled then the Notice can be warned off by making an application to the Land Registry. Your husband should consult a family solicitor who can determine what type of Notice has been registered and how to deal with it.
If your husband is dissatisfied with the reduction of the time he spends with his son then it may be possible for this to be increased. This can be dealt with by negotiation through solicitors, mediation or an application can be made to Court for a defined Contact Order under the Children Act 1989. The amount of contact will be decided based on what is in the child’s best interest.

Anonymous - March 13, 2014 at 7:32pm

Dear Gus
Marilyn has asked me to reply to your question. I am a solicitor at Stowe Family Law.
As your brother was not married then the property he owned with his girlfriend is governed by the law relating to cohabitees. Strict rules of ownership apply but as your brother has protected his interest in the home by way of a Deed of Trust then his ex-girlfriend’s share of that property is as set out in the Deed. However, as your brother is the father of her children she can apply to the child support agency for him to pay child maintenance which is calculated based on his gross income.. If he earns in excess of £156,000 gross per year ( £3,000 per week)she can apply for top ups under the Children Act 1989 and your brother may have to pay additional maintenance. She could also apply for capital lump sums under the Children Act but would need to show that capital was genuinely required for the children’s benefit. Sometimes a capital lump sum can be requested to provide accommodation for the children but the property would revert back to your brother when the children finished education.

Kelly Parks - March 14, 2014 at 9:18am

Dear Nick
Marilyn has asked me to reply to your question. I am a solicitor at Stowe Family Law’s Hale office.
You do not say if you are married, the law is very different depending on whether you are married or co-habitated. I assume you were not married as you refer to her as your ex-partner rather than wife, and am advising you on this basis. There is no legislation governing the rights of co-habitees so you have to look at property law, in terms of ownership and Trusts.
How is the property owned? I note you state you ‘gifted’ her a minority share. If owned jointly do you own it as a tenant in common in unequal shares?
Assuming you have lived together and own the property jointly, if you do not pay the value of your ex-partner’s share of the equity, she can make an application to the court for an order for sale, to ensure she gets her share upon the sale of the property. Such an application will be made under the Trust of Land and Appointment of Trustees Act, known as TOLATA. Trusts law in complex and you need specific advice according to your circumstances.
If your ex-partner is the main carer of the Children she can also make an application under Schedule 1 of the Children Act, for financial assistance for the children.
The court would not compel her to work, although her earning capacity may be take into consideration in Schedule 1 proceedings.
This is very generic advice and I would recommend that you take advice from a family solicitor about your specific circumstances.
Kind regards
Kelly Parks

Anthony Jones - March 14, 2014 at 9:46am

Dear Name Withheld
Marilyn has asked me to reply to your question. I am a solicitor at Stowe Family Law’s Hale office.
There are 2 aspects here.

1. Enforcement if your husband loses. The court has various enforcement powers one of these is to place a charging order on your husband’s share of the equity in the property and then apply to enforce a sale.
2. Only your husband’s share of the property can be taken into account as the judgment would be against him and not you.
Kind regards
Anthony Jones

Jane Gray - March 14, 2014 at 10:40am

Dear Emma
Marilyn has asked me to reply to your question. I am a solicitor at Stowe Family Law’s Hale office.
The devolution of property on death will be determined by how a property is held. Joint property can pass in different ways. Property held as joint tenants will pass automatically to the survivor outside the terms of his or her Will. In contrast, property held as tenants in common will pass in accordance with the deceased’s Will. Property held as tenants in common will indicate that there is a form of agreement known as a Trust over the property as to who owns the beneficial interest in the property or how it is shared between parties. The eventual ownership of the property will be determined by the nature of any Trust either agreed or implied over the property in lifetime.
If the property you refer to is held as tenants in common this should be clear by looking at the property deeds. If one party dies their share will pass under the terms of any lifetime trust agreement or if none under the terms of their Will. The Will itself should have been proved at the Probate Registry and a Grant of Probate issued. A copy of the Will and Grant of Probate can be obtained and examined to see what powers are available to transfer the Trust to a substituted property and/or deal with the sale of the interest held for the children.

Kind regards

Jane Gray

Jane Gray - March 14, 2014 at 11:06am

Dear K
Marilyn has asked me to reply to your question. I am a solicitor at Stowe Family Law’s Hale office.
I am assuming that your step father owned 100% of the property but that would need to be checked. If he owned 100% then I am assuming your mother was the administrator of his estate and therefore she is the legal owner of the property as a Trustee ? When a person dies without a Will their estate is divided in accordance with special rules called the Intestacy provisions. These provide for a Trust to be in place for a child until that child reaches 18 years. It is possible that your step sister has the right to become a Trustee of the property along with your mother if she is entitled to an interest in the property. In broad terms, the Trustees of a property usually hold it upon a trust for sale but they have a power to postpone any sale. If your step sister tried to force a sale the position would need to be put before the courts to decide and the courts would look at all the circumstances including the needs of any children who are under 18 years.

I would also highlight that the provisions on Intestacy can be varied by the court in certain circumstances to make provision that is fair and reasonable to an individual who was financially reliant upon the deceased in lifetime or who contributed to paying towards a property that was not in their name. This area of law is complex and tailored advice will be required based upon your specific circumstances. Such advice would cover the right to rent which is not a clear cut issue.

Kind regards
Jane Gray

Luke - March 14, 2014 at 1:18pm

‘Withheld’, if people have given you half a house that seems very generous indeed, if they ask you to sell up and move out – presumably taking half the value of the house with you when you leave – don’t you feel morally obliged to do just that ?

Nick - March 15, 2014 at 2:50pm

Hi Kelly.

Thanks for your response. All your assumptions are indeed correct (ie unmarried, tenants in common with deed of trust, etc) and I’m feeling more reassured by what you’ve said so far re. TOLATA.

My biggest concern is still the application of Schedule 1. If claimed because she decides her share isn’t enough for her to buy elsewhere, could I be made to sell my house to finance a capital lump sum for the children’s accommodation until they’re 18? My income is very low. Would the court not consider renting as reasonable? I’ll still be supporting via the ongoing child maintenance payments and the lump sum I’ve already given her.

Thanks,
Nick

Jackie - March 17, 2014 at 4:48am

Dear Marilyn

My parents separated 28 years ago and my mother moved out of the family home and went to reside elsewhere and owns the house where she lived which my father bought for her but didn’t have his name added to the deeds . They each own 50% of the property as joint tenants in common but it was my father’s sole residence where he resided alone. My father was diagnosed with dementia in July 2013. My sister and I have joint POA in respect of my father’s property and finances but not his welfare. This is joint and not joint and severally. My father was deemed by his GP as having lost financial capacity in December 2013. My father has since suffered a stroke in January 2014 and is currently in a rehabilitation hospital. The hospital say he needs to go in a care home. In the meantime my mother has moved back into my father’s house without his consent or knowledge. However, Social Services are saying my father has lost full mental capacity particularly in respect of being able to decide where it would be in his best interest to reside. My mother is now intercepting all his mail trying to deal with his finances and bills and paying for repairs and modifications to the property therefore undermining me and my sister’s joint POA. However, my sister does not mind this as she colludes with my mother, whereas I do mind as I know my father never would have allowed her to move back in if he were still able to live there. Can my mother do this legally? Although my father has dementia he has told me he does not want my mother to live there. My father probably wouldn’t want the property sold either. What if anything can I or my father do in this situation?

Jacci 31.3.14 terminal - March 31, 2014 at 1:57pm

Hi Marilyn,
I am in a strange situation. I was with my partner for five & a Half years. We purchased our home together four years ago this April & we are joint tenants’ in common owning 50-50 split. Both of us have made wills leaving our halves to our own children. I was diagnosed with terminal cancer 15 months ago & I have survived longer than originally expected to. My partner couldn’t/wouldn’t cope with my diagnosis & left me. He always paid the mortgage as we agreed before buying the property as he earned more than me & I paid other bills. When he left, he continued to pay the mortgage & left me to pay every other household bill. I am managing to work for now but obviously I can not state for how much longer I will be able to continue to do this, especially as the Company I work for is trying to take me down ‘the capability’ route. Anyway suddenly in a fit of temper my ex has now said he won’t pay the mortgage any longer & is going to take me to court to put the property up for sale. All I wanted was some peace & to be able to die in my own home which I have worked so hard for over the last 27 years. (I sold my cottage to buy this cottage with my ex partner). This is all so very worrying for me…..what advise can you give me? Thank you for your time.

Anto - April 2, 2014 at 10:01pm

Fifteen years ago my partner and I split up when my youngest daughter was one. I purchased our family home before meeting him, however once we had our daughters I put him on the mortgage. He then left us and took everything in the house leaving us with nothing. Now at the time feeling very low I got myself a solicitor who did not fight my case and in court even though we were not married he was awarded half of the house but not at the value then but when my youngest reaches 18. I am 53 years old now and have tried my best to make a family home for me and my daughters but I feel sick at the thought of having to pay him out when he has never paid a thing into the house or to the girls. Is there anything at all that can be done to overturn this decision

Thank you

Sarah - April 4, 2014 at 12:58pm

I left an abusive relationship and jointly owned home at the end of last year- with my 2 kids.
Contact is in place and family manage this arrangement for me.
Regarding the property, he has failed to acknowledge my solicitors request for valuations however when threatened with court he did respond and agreed to get these done. 1 month later he has still failed to do so. I am afraid he is going to default on mortgage or do pretty much anything to avoid offering me anything of what I’m entitled to. He has used this as part of his abuse since week 6 of buying the house, I’m sure that won’t change!
Can he be forced to pay my court costs?

Andrew - April 4, 2014 at 5:02pm

Anto, if you had been successful fifteen years ago how would you feel about an attempt to undo it fifteen years later?

You have known since then that the day would come and indeed when. Plenty of time to prepare. Face up to your obligations.

Henein - April 12, 2014 at 2:22pm

Can a wife asks a solicitor to make a new will and next day sending a Notice of Severance to her husband without given him a reasonable notice period ? ( there was no separation or divorce).
Please let me know, many thanks.

Marilyn Stowe - April 12, 2014 at 2:26pm

Dear Henein
Yes. A Notice of Severance alters how her half share will pass in the event of her death and yours too so you must make a will. It does not affect your ownership of your half share.
Regards
Marilyn

Kate - April 14, 2014 at 11:46pm

Dear Marilyn
The questions and your comments on this site are very useful.
My father made his will without a solicitor leaving unequal shares in his house and personal property to me and an unrelated female. No probate yet and I have been paying all costs. The other beneficiary renounced as executor and has so far refused to contribute to maintenance costs saying she isn’t legally liable to pay. I want to keep the house, renovate and let it. The house is not in a condition to let without repairs. Selling it before renovation would mean it being sold cheaply. My accountant advised renovating, letting and then living in it for 6 months before sale to avoid CGT and extra IHT charges. What can I do if she refuses to pay her share of the running costs and repairs? I have threatened to have all the services cut off and the house might end up being uninsured as well if she doesn’t pay her share. I have pointed out that it is in her interest to help maintain the house. She has so far behaved in a very cavalier fashion regarding her legal duties in relation to company law which does not bode well for the future. I cannot afford to buy her out.
Can I go the small claims court without a solicitor to recover maintenance costs from her? I have a very low income and little savings.

Mark - May 20, 2014 at 7:48pm

Dear Marilyn,
My ex-partner and I bought a house around 10 years ago. Her brother gave her a gift that was used as a deposit on the house, with the remainder financed with a mortgage. We are joint tenants, and made no written commitment on how the house would be divided should we ever separate. Subsequently all expenditure on the house (mortgage, renovations, maintenance) was split 50/50. We separated 3 years ago, and at the time my ex-partner proposed that on the sale of the house she would take back her initial deposit with any additional proceeds split 50/50. I agreed to this proposal as I thought that it was only fair she should take back the money gifted to her by her brother. We recently agreed to sell the house, and have received an offer that was substantially higher than we expected. My ex-partner has now told me she wants to renegotiate the division of the proceeds, arguing that because she put down the deposit she is entitled to a greater proportion of the profit (she calculates a 60/40 division). I’m not happy that she is now trying to tear up our original agreement, and I am particularly unhappy that she is ignoring the fact that the considerable amount of money spent on the house over the years was always equally divided. However, I have said all along that I wished to see a fair division of our property. In our circumstances, what is the correct and fair way to divide the property?

Marilyn Stowe - May 21, 2014 at 8:47pm

Dear Mark
It would appear to me, in the absence of a a declaration of trust when you bought the house, stating your ex was entitled to a greater share, you each own half and each of you is entitled to half the net proceeds.
This isn’t formal legal advice on which you should depend, I’m not your lawyer. I suggest you take legal advice.
Regards
Marilyn

Fergus - May 28, 2014 at 8:15pm

Dear Marilyn,
My wife and I have recently purchased a house with our only daughter and her husband. Our 50% share was paid in cash and they have taken a mortgage for around 30% of the overall value. The house is in their name only and we are all living together.
However , In the unlikely event that they get divorced can you please advise on what sort of legal document should be raised to protect my wife and I if that was the case?
Any advice would be greatly appreciated.
Kind regards
Fergus

Marilyn Stowe - May 30, 2014 at 7:58pm

Dear Fergus
This is something that really should have been done when the house was purchased and before you handed over your money. Possibly, for Inheritance tax reasons nothing was done. However if that was the case, tax is not the be all and end all and the downside is what happens not only on divorce but if you all fall out and/ or they want to sell. At the moment your son in law and daughter own 100% of the house and you own nothing. You appear on the face of it to have an equitable half interest in the property. Will they willingly transfer part of their share to you to reflect that you paid for most of it? They may or may not. So what can you do?
If there was to be a divorce, the outcome depends to a great extent on what was agreed and what your daughter wants going forward. Why was the property bought in this way? What was the agreement? You might need to join in the proceedings or support your daughter in the argument against its sale arguing perhaps you were content to do this on the basis it was effectively rent up front, for life and meant you would live there for life? It’s by no means guaranteed to succeed.
Apart from divorce however, what happens to you if they want to sell or want you to move out?
Should they not at least grant you a lease to remain in the property for life?
I don’t know the answers to all these questions but I think you are right to be concerned. I think you should take legal advice to try and put it all beyond doubt sooner rather than later. I’d be interested to hear what you decide to do.
Regards
Marilyn

Mary - June 9, 2014 at 4:48pm

Dear Marilyn
I would be really grateful for your advice as I am going out of my mind with worry and hardly able to eat or sleep.
My marriage of 20+years broke down when my husband left our marital home almost 2 years ago after his last affair and is currently living with his girlfriend and her child. We have 2 children of our own (in their early twenties), both have multiple lifelong disabilities, autism and one also has severe mental health problems including self-harming and suicidal depression, requiring 24/7 care permanently which I continue to provide in the marital home. Our home was equal 50/50 joint tenancy and mortgage which was taken out over 26yrs with 18 yrs still to go.
Shortly after my husband left I went to see a solicitor for advice who suggested that he write to my husband to find out what his intentions were in regards to the property /mortgage and to see if he was agreeable to transferring the property over to me. My husband having already told me that he had no interest in the property and that he would continue to pay the mortgage until it was fully repaid and would never make a claim against it because of the children’s needs’. however honesty has never been one of his strong points so I asked him to confirm all of this in writing to my solicitor which he did and he agreed to the property transfer which has been completed and is registered with the land registry. The mortgage is still in joint names to which he continues to pay half. We also both agreed to wait the 2 years until getting divorced for as apparently after 2 years it is less complicated and not as expensive.

I have now just received a letter from his solicitor stating that my husband would like to sever the joint tenancy of the property so that we each own one half of the property as tenants in common.
The copy that I am requested to sign states: ” I give you notice to sever the joint tenancy in equity of the property which we have previously owned as joint tenants at law and in equity”.(what does this mean?)
I have phoned my solicitor who says that he has absolutely no idea as to what my husband thinks be is doing because he has already transferred the property over to myself over a year ago which is registered in my sole name with the land registry and has suggested that I do nothing and see what he does next, he also told me that there is no longer any legal aid so that I would have to pay for any further help which obviously I cannot afford.

I am worried sick especially as my husband has left us in thousands of pounds of debt which I am left struggling with,which was run up on credit cards unfortunately in my name (he was an additional cardholder on which most of debts were run up on). He also took out personal loans in which I think he has defaulted on as they keep ringing here even though I keep telling them that he no longer lives at this address. I am worried as to whether they can put a charge on the property even though it I has been transferred?
He has an excellent job with an excellent salary even after paying his half of the mortgage, he is managing several holidays abroad and now a brand new car, he doesn’t make any other contribution to the children’s needs apart from his half of the mortgage which is fine but I am now worried that he will stop that as well.
Our home is the only security that we have and is needed to be able to provide the long term care and stability that both children need. The impact of losing it would be devastating on both of them and potentially worse.
Please can you advise as I am going out of my mind with worry. What does the letter mean?
Are there any further legal steps that I can take to protect our home and to make sure that he continues to pay the mortgage?

Many thanks

Richard HORNER - June 15, 2014 at 6:42pm

Dear Marilyn
If during the decree nisi a spouse is awarded, by the court, a financial settlement but dies prior to the decree absolute being issued does the deceased NOK have entitlement to any of the remaining financial assets or does it become null and void? If it does become null and void does the surviving spouse inherit the deceased outstanding debt and would they be responsible for finalising the deceased affairs including funeral expenses etc? Your response would help clear up a way forward with probate.

Graeme - June 16, 2014 at 11:22am

Dear Marilyn,
my girlfriend and I have been a couple for over 20 years and have sold our house which we jointly owned. We have found a new house which we hope to move into; my partner will be the sole mortgagor. Are we able to have both our names registered on the title deeds as having joint legal ownership? this is what we want and what we currently have on the property we have just sold.
I would be glad of your comments.

Marilyn Stowe - June 23, 2014 at 2:51pm

Dear Graeme
You will need the consent of the mortgagee. If it isnt forthcoming then your girlfriend could enter into a legally binding deed with you that in consideration of you putting your share into the property she is holding on trust for both of you in whatever shares you both agree. Or she could enter into a second mortgage with you but again the mortgagee would need to consent. Your conveyancing solicitor should be able to advise you further.
Regards
Marilyn

Graeme - June 23, 2014 at 3:14pm

Many thanks for your invaluable advice Marilyn, very much appreciated.

Debbie Byard - June 17, 2014 at 3:02pm

Hi
My friend bought a house with her husband a year ago, they are about to divorce and he has said she can carryon living in the house until she “dies”.
She will pay the mortgage and all bills but if she sells he wants have the value of the house. He put in the deposit and they have for the past year been paying everythin equally.
Can she protect herself so if she sells and there house is worth considerably more than it is now she doesn’t have to give him half, but only the deposit he put into the property, plus any profit up to the date they divorce?

Thanks.

Marilyn Stowe - June 23, 2014 at 2:38pm

Dear Debbie
I think your friend needs to see a solicitor.
Regards
Marilyn

Bridget - July 11, 2014 at 11:31pm

Hi Marilyn, I have been served papers to end a civil partnership but my ex refuses to sell the marital home or buy me out. We both have two biological children out of the marriage which we have sole responsibility. Basically we are in the same situation on benefits except I’m renting in Australia and she’s in our joint owned home.
If I agree to the divorce and don’t do anything with regards to property until her two children are grown up. Am I at risk of losing it because I haven’t paid anything? How will the property be divided in say 15 years? By value today (2014) or value then (2030)? Is there anything I can to get the best outcome? How can I hire you?!
Thanks in advance

Marilyn Stowe - July 12, 2014 at 12:44pm

Dear Bridget
I think you should sort it out now by negotiation, (and we can discuss the various forms of out of court resolution) but also if necessary by making an application to the court in the proceedings. You can contact my office by emailing us via our contact page
Regards
Marilyn

Mr Philip Haigh - July 25, 2014 at 11:12pm

Hi hoping you could help me . My ex partner and i have just sold our house we had a joint mortgage in both our names our solicitor is holding monies from the sale until my partner and i come to agreement on how the money is split . I have asked for half and my ex is saying im not getting a penny as all the bills and mortgage went out of her bank i have no prove of being there she is saying i only lived with her for the first year which is a lie . I left the property last year when she told me to leave we have two children together age 9 an 3 . She has stopped all excess because i am not willing to let her have all the monies and is now telling me i need a solicitor as she has been in touch with one and it will be going to court .I have asked the solicitor who dealt with the sale of the house and they have told me i dont need a solicitor as they hold the monies till we come to a agreement on how it should be split could you please let me know who is right and what i should do next . kind regards p haigh

Marilyn Stowe - August 8, 2014 at 3:24pm

Dear Philip
This isn’t a family law question but if you are both not married to each other, when different issues may possibly apply, then you are each entitled to half the net proceeds of sale and no more. How the money is distributed afterwards out of your respective half share is up to you both. I would ask your solicitor to pay each of you half. She is not entitled in law to any more than half and I don’t think they are entitled to retain your money. However I freely admit I could be wrong! Im not a conveyancer. So contact the Legal Ombudsman for more advice or the SRA both are online.
Regards
Marilyn

Andy M - July 26, 2014 at 8:33pm

Hi, I have a tenants in common agreement with my girlfriend with a shared 50/50 split. When we bought the house she put in her half in cash (£110,000) and I put in £20,000 cash & took a £90,000 mortgage for the remainder of my half.

I work full time, she worked part-time & had two children in our time together. We shared bills but I paid the mortgage from my account.

Now we are splitting up (still unmarried), my question is am i entitled to an equal 50% of the money after the mortgage is paid off or is she mortgage free and I have to pay off the remaining balance from my share of the equity? Her name is on the mortgage even though she put in half the cash originally because we wouldn’t have got a mortgage for £90,000 without a dual income calculation.

Thank you in advance for advice, we are not agreeing on what should happen as I believe we have both contributed similar amounts over the years even though she put more in at the start.

Andy

Marilyn Stowe - August 8, 2014 at 3:27pm

Dear Andy
If you each own as tenants in common on the face of it you are each entitled to one half of the net proceeds of sale. She could apply for provision from you under Schedule 1 Children Act 1989 and for the house to remain unsold for the benefit of the children under TOLATA (Google it!)
Regards
Marilyn

Joe - August 5, 2014 at 11:06pm

Dear Marilyn,

My brother and I are going to purchase a few properties with mortgages for investment purposes, and our parents are going to gift us the deposit. Both of us are currently single, and may plan to get married in a few years’ time. As brothers we always have a very good relationship, but I cannot foresee what will happen after our marriages, with our wives probably having their own ideas about things.

It looks like if either of us wish to change from joint tenancy to tenants in common, it can be severed and will happen anyway. And that is unlikely, but below is the real worry in the future.

From what is suggested in some posts earlier, if things do come to the worst in divorce with me with my wife or my brother with his wife, it sounds like if the ownership is in tenants in common (50/50) for the joint properties, either my wife or his wife could fight for at least 25% of the ownership of the properties. And since joint tenancy will only have ownership transferred in the event of death of either owner (me or my brother), will that prevent any claim of interest in the properties if a divorce happens (me with my wife or my brother with his wife)?

I will be grateful for any comments, and thanks in advance.

Kind regards,
Joe

Marilyn Stowe - August 8, 2014 at 3:52pm

Dear Joe
In law currently, all property owned by husband and wife irrespective of jt tenancy or t in c which is a red herring here, is available for sharing. So your half share or whole share if your brothers share did transfer to you, would be available to your future wife on divorce and how much either of you get depends on your respective reasonable needs. The court would expect you to realise your half share and potentially could even transfer it to her.
You need to consider how to protect your property from a claim. Your conveyancing solicitor may be able to suggest how to do so, but there would need to be complex arrangements and also when you do marry you could enter into a pre nup – Im not suggesting there is an easy fool proof way to avoid your liabilities in a marriage. That is why many people choose not to get married.
Regards
Marilyn

Luke - August 20, 2014 at 3:56pm

“Both of us are currently single, and may plan to get married in a few years’ time.”
================================================================
.
…and there’s your mistake Joe 🙂
.
Just don’t walk down the aisle and if you are sensible with your personal arrangements YOU are in control – not Family Court deciding on your life as they see fit.

Ron Winfindale - August 20, 2014 at 2:55pm

Hello Marilyn, congratulations on a fantastic site.
May I ask for some advice please?
When we bought our property, I paid a £103,000 deposit. My girlfriend paid nothing. I was asked at the time by the conveyancy solicitor whether I wanted an agreement to protect the deposit if we separated. My girlfriend freely admits that she said at the time “no matter what happens, I will never touch your money”. So I never got anything in writing. Over 9 years, we paid everything jointly, have 2 wonderful children but are sadly separating with joint custody. She now wants a 50/50 spilt of the sale proceeds. Is she entitled to this?
She says she has seen a solicitor already and she was told that she is entitled to half of the sale proceeds. At present, I cannot afford a solicitor or expensive court case.

Vivienne - September 22, 2014 at 3:56pm

I wonder if you could help me
My son in laws Dad left his house to him and his ( Dads) common law wife but only if she promised to sell on his death or buy him out which she did
He died a year ago and she is refusing to do it can he do anything ?….

Marilyn Stowe - September 22, 2014 at 4:06pm

Dear Vivienne
If I’ve understood you correctly, she wont buy him out or sell and they own the property jointly he can apply to the court for an order for sale. He definitely needs to get a copy of the deeds from the Land Registry and/or ask a solicitor for advise. I’m pretty sure from what you write he can take action and get his share so he needs to do something and should start by seeing a solicitor.
Regards
Marilyn

Paul - September 23, 2014 at 3:21pm

Hello Marilyn,

I own a property with an ex partner which was bought under a Declaration of Trust (in the event of sale, both parties get their initial deposit back, with any remaining equity split 50:50).

We are unmarried, there are no children and the relationship failed two years ago.

Since then my ex-partner has lived in the property and paid the mortgage herself; I have had no access to the property during this time and my ex-partner changed the locks (not that I particularly wanted access).

It was agreed that we’d “sort out” finances sometime in the future, but this particular can is being kicked further and further down the road. I would like to address this issue now (not be financially linked any more, get my share of the equity out etc) but my ex-partner continues to stall.

Can I force her to sell (or buy me out if she wants to stay); will the fact that she has been solely paying the mortgage for two years effect the 50:50 split of equity as stipulated in the Declaration of Trust (nb the mortgage is only 8 yrs old, so the majority of monies paid will have gone against interest, rather than capital repayment)?

Thank you.

Marilyn Stowe - September 23, 2014 at 3:42pm

Dear Paul
Property disputes in relation to non married couples are treated as disputes between non related people and therefore fall into the Chancery Division and are governed by property law. You can apply to the court for an order for sale and for costs. She can apply in the proceedings for equitable accounting to apply which means an exercise into the payments made since you left to ascertain whether you owe her any more money. Equally you can argue you are entitled to an occupation rent. Take legal advice to make her an offer before going ahead and see if you can sort it out first.
Regards
Marilyn

Paul - September 23, 2014 at 3:32pm

Additional to the above:

I have found the following advice in relation the the above scenario, re costs involved of potentially taking my ex-partner to court to achieve the sale of the house:

The “bonus” in these cases, if it can be called that, is that costs follow the event – which means that if she forces you to take her to court, she will end up paying your costs out of her share. The reason this is a bonus (aside from the obvious) is that it means that people not only take legal advice, but they take it seriously and few of these cases end up in court because of the real costs risks involved.

Is the above paragraph accurate please?

Alison - September 23, 2014 at 3:47pm

I own my home with my youngest son and pay half the mortgage. Our relationship has broken down and I want to leave the property and continue to pay the mortgage. We are joint tenants but I would like to change to tenants in common as I don’t want him to inherit the entire house and would like to either give my share to my eldest son or leave it to him in my will. He has refused to agree to this as it will ‘take away some of his powers’. Is it correct that I can sever the joint tenancy and change to tenants in common even if he doesn’t agree?

Marilyn Stowe - September 23, 2014 at 4:05pm

Dear Alison
You dont need the other owners permission to sever the joint tenancy. You serve a simple notice on him in writing, severing the joint tenancy, but make sure you can prove he got it, by asking him to sign and return a copy to you and you lodge a copy of these with the Land Registry. Id also suggest at the same time you make a will. The easiest way to do all this is to instruct a solicitor.
Regards
Marilyn

Carolyn - October 10, 2014 at 8:37am

Dear Marilyn
Last year, my husband’s father separated from his second wife after over 20 years of marriage – she insisted he leave when his health declined and she felt she was not coping with his care (children totally unaware – the illness was kept a secret). Whilst living with his daughters and son who then shared his care, he made a will and severed joing tenancy, leaving his half of the property to his children, funeral costs to be taken out of his estate (limited other funds except the house). He died 3 months after the separation, 2 months after making the will and severing joint tenancy. One year on, his wife (aged 68) is refusing to sell or buy out his children and the funeral costs are an issue (paid by son expecting reimbursement on sale of property). Please can you advise? Thank you.

Marilyn Stowe - October 11, 2014 at 10:47am

Dear Carolyn
The executor of your father’s estate can take steps to have the property sold but I think beforehand you may need legal advice in relation to a claim to an increased share of the estate the widow may have if all she got was half the house, and she wishes to stay there. There are time limits but overall, act with caution.
Regards
Marilyn

lisa draper - October 15, 2014 at 10:11pm

Can anyone help please ……. I am selling my house which on paper is jointly owned by my husband.
However I left this marriage 2 years ago after many years of abuse and my 13 year old son lives in
rented property with me while my husband has lived all this time in the four bed family home and paid absolutely nothing on mortgage or any bills.

Also in 2008 he went to prison for three years and when released was told he had to pay 40,000
compensation or go back to prison to finish sentence (and still owe money) or they would take the
house off us.

My mum changed her will and paid the money off out of what would be my inheritance.

My husband is now saying its not his debt!! and has offered
to pay back half at the most, and I have to pay the other half back to my mum. It is all my money
anyway!! Where do I stand legally with this? The solicitor says he just splits it in half.

Also I paid for the house out of the sale of a property I inherited before I even met my husband.

He has not worked for all the time he has been in the house.

HELP before its too late please

Marilyn Stowe - October 16, 2014 at 5:13am

Dear Lisa
It’s not easy to understand what you write here, but if you haven’t had a financial settlement in your divorce, you should apply for a transfer of property order and a lump sum order as part of your claims. Alternatively if you have already had a settlement you may be able to challenge the split under TOLATA ie property law.
I don’t know whether the solicitor you refer to is yours or the conveyancing solicitor appointed to sell the house on behalf of you both, but before you do anything else, you need to get some good family law legal advice.
Regards
Marilyn

Busy Bloke - November 3, 2014 at 3:30pm

Dear Marilyn

My ex-wife disappeared unexpectedly ten years ago to run from creditors and to move in with her boyfriend overseas, and a divorce ensued, but I no longer have any contact details. Meanwhile, with nowhere else to go, I remained in the home ever since, but have never received any contribution towards servicing the mortgage, or towards reasonable maintanence of the property, all of which have left me the poorer, financially and emotionally for my considerable and necessary effort.

More recently, I have beome confused about the legal implications on Severance of Joint Tenancy, but because of the default 50:50 split implication, which may have seemed reasonable and appropriate back then, but surely not now, I have failed to complete and submit such a document.

As a disabled retired man, unable to redeem the mortgage before the approaching expiry of the mortgage term, I would wish to downsize in order to satisfy that responsibility, but if I cannot with confidence make a reasonable offer on another property, then I will remain at risk of considerable risk of homelessness at the end of the mortgage term. In these circumstances, could I apply for a Transfer of Property Order to enable a sensible outcome, without the impossible stress and risk of an order for sale of the property also being imposed? Should that happen, my health would break down without any doubt.

However, I recognise willingly and enthusiastically that the inheritance interests of children must be protected, (especially from my ex-wife and her partner), and reluctantly, I recognise that that a currently unspecified financial interest of my former wife should also be noted.

I have been unable to discover whether I would be entitled to legal aid in view of my circumstances, and I am nowhere near any law centres. In fact, good advice seems impossible to find, and as such, I would much appreciate your guidance. Thank you.

Anni vu - November 4, 2014 at 11:02pm

Dear Marilyn
My dad has just passed away leaving behind him his property which is still jointly owned with his second wife ( not my mum) who he devorced long time ago. No will can be found. As far as my sister and I concern, we are his only children. Our soliciter are trying to track that lady down after found out about her existance. Please respond on the out come of this situation.
Thanksss

Rane - March 21, 2015 at 10:55pm

I have a question, If some one inheritage a house before get married, and sale the house a couple of months later and credit the money from sale on joint account is the m later buy a house over seas.

My question is How the split of assets will be in this case? Maybe should say the divorce is in Scotland .

Thank you!

Mr? - March 30, 2015 at 12:13am

Dear Marilyn,
I would like initial guidance as to what options might be available to me in defence of an order to sell or whether it is possible to pursue some innovative action against my ex partner (girlfriend) such as for breach of contract/trust.

I lived with her from approx 2008. We purchased a house on the same street in Oct 2010 in order to develop and extend it to be able to accommodate my 2 children as well as hers who lived with us. It was also my intention to secure a pension income by creating a self contained apartment to achieve a regular income, as well as using the project to serve as an advertisement for a low energy constructuin/project management company I had set up.

After 2 planning applications and a huge amount of domestic grief, my partner stated that she would not participate in providing any additional finance required to complete the refurbishment (we had both raised £50,000 each at the outset. I had a suspicion that she had malevolent intentions growing and was enduring a lot of domestic abuse (verbal) in her home and was subjected to banishment to the spare room for a period and was also made homeless for a period. Finally I was again told to leave her home approx 8months ago, whereupon I moved into the semi derelict home we had purchased and continued to renovate it in order to make it liveable.

My partner as I had always suspected was her plan, is now attempting to force me to sell the house and is demanding a substantial amount for a ‘buy out’ despite not contributing in Any way to the increased value ( she did pay the purchase fees and the architect fees for the unsuccessful planning applications. I paid the whole deposit and ALL refurbish costs along with providing labour, sourcing and project management in my capacity as a design and build company/entity) to the value of £45k deposit and I estimate £80k on materials and my labour/services.

I believe my partner is entitled tonrecoup somebof her costs, but as a banker my ex has a rather cold, callous and I feel elevated opinion of her entitlement and is seeking to further bully me through legal means, despite stating we should talk, but then totally ignoring anything I put forward. Equally she seems hell bent on trying to force me to sell my other property to buy her out…seemingly out of spite/jealousy, despite also owning her own property. My enquiry is into seeking damages for her reneging on our agreement/contract (unwritten) to develop a family home, THE ONLY basis upon which I agreed and invested significant funds, time and effort into achieving (including taking approximately 12-18 months off work).

Alternatively or equally under the terms of Equitable Accounting, would I be right in believing I could also attempt to prevent her seeking to claim and profit for work, materials and services I have already supplied and been the sole payer of, as well.as the profit attributable to my share of investment.

I would be very grateful for an indication of the chances of success of a claim for damages against her for failing to execute her proportion of the agreement to cooperate, participate and financially contribute the project on an equal basis (indicated by our original additional borrowings.
I believe the equity after deduction of our investment, should be shared in proportion or ratio to our investment amounts.

I would GREATLY appreciate some feedback or strategy to help me protect my home whilst giving her a fairer settlement (to me) to get her out of my hair. And look forward to your response.

Unfortunately i doubt i could claim for potential losses or damages I might incur in future from loss of income or pension from the apartment, or loss of future/potential business I might have achieved through completion of the project as a case study for my services and company.

Anne - April 9, 2015 at 4:26pm

Hi Marilyn please can you help me my husband and i are tenants in common .we have half shares each in our house but when the survivor dies then four other people will each get equal shares . our problem is we need to disinherit one of the four people Please could you tell me how we can do that . Do we have to go to a solicitor or can we just put a line threw their name

mark - May 2, 2015 at 2:25pm

Hi Marilyn
My ex wife moved out 2.5 years ago and left me and the 4 children (14,19,20&21)in the family home. She had caused many issues due to alcohol and left the family in considerable debt, police and social services were involved. She lost her job soon after leaving home while on equal salary to me. She stopped contributing to the family when she left. Eventually an agreement was made prior to the final court hearing; the court order stipulated I pay her a lump sum of £20k and 33% of my teachers pension (CETV £250k). I had to represent my self in court due to my financial position. Court order was dated 9 Jan 15, decree absolute 9 Feb. There was a 56 day limit on paying lump sum, when she would be removed from mortgage n deeds. If I didn’t pay, I had to sell house and split proceed 60:40. However, she died on the 8 march, before implementation of the order. The joint tenancy was severed when she moved out.
Her father, who is being unreasonable has now applied for probate, I now have the will and the only beneficiary is her ex partner, they had an on off relationship. I have applied to court as not to be in breach of the order, hearing is 13 may.
After obtaining advice and research I believe I meet all conditions required in a barder event! I have also been inform I or my children may need to apply and make a claim on the inheritance act 1975. I really don’t know what route to take. I would appreciate any advice u can offer, thank you.

Jason - May 7, 2015 at 10:23am

Hi Marilyn , im wondering if you can give me some advice. I separated from my partner over 4 years now and i moved into my parents home for a year as i was still paying the full mortgage on our family home as my partner couldnt afford to pay it. I now rent a property so my 7 yr old son can stay with me. We have just sold the family home as my ex wife has moved in with her new boyfriend. The solictors have had to hold the proceeds which isnt a great deal because my ex wife has only offered me a smaller amount not the half i was expecting. Do i have the rights to expect half the proceeds as i have been moved out of the premises for 3 yrs now ? Any advise would help so we can release the money from the solicitors.

Regards

Jason.

David - June 16, 2015 at 4:38pm

Hello

My situation is that my ex partner and I separated last year. We have a joint mortgage together. I felt I had to move out
Of the family home after a period of emotional and psychological abuse. Since then I have made payments to my ex partner to help with the cost of the mortgage. I moved away to a different part of the country for work purposes. I have recently changed jobs and relocated again back to my payments home. I want to move back into the family home. Do I have a right to move back? But my ex partner has changed the locks and trying to force a severance with the land registry? Can you help me please?
Kind regards
David

Shola - July 5, 2015 at 5:33pm

My situation is rather award. My ex husband and me have been divorced 10 years plus and has lived separate 8 years. We have 3 children together. However the flat we once shared is a joint tenancy . He has not lived there for over 6 years however threatened to come back as his name is on the tenancy. I took the decree absolute to the housing association to remove his name, I was told he need to severe his tenacy in writing but my ex will never do that. What do I do to get his name off the tenancy as he will not agree to rendering his tenancy to me.

Bridget - July 16, 2015 at 4:03am

I’m not sure if u are still helping with these comments but I’ll try anyway. My ex has offered me an amount to get my name of the deeds. My name however will still be on the mortgage as bank won’t comply while she doesn’t have a job. I want to help her keep the house so not forcing her to sell. I’m wondering though is it possible to put a clause in that if she defaults on the mortgage and I have to takeover repayments that I’m then back on the deeds? Or is that something a court isn’t able to do? Thanks Marilyn

MK - August 24, 2015 at 11:25am

Hi Marilyn,

In 2010 I bought a house together with my husband. It was conveyed into our joint names. Then we decided to build an annexe. My husband is a bulider, so he provided most of the materials and did the manual labour himself. No we are going to divorce and he claims that I have no rights to the annexe, because I didn’t pay for it. Is it true? Is the ownership of the annexe separated from the house’s ownership?
Can I claim that because I was the one to take over the payment of the mortgage although it was in our joint names, there is no equitable co-ownership? What is important – who pays the mortgage or in whose name it is?

Thank you for your advice,
M

R - August 28, 2015 at 1:28am

Dear Marilyn,

I hope you can help. I have been going through a divorce process over the last year and finally got my DA 2 weeks ago. The FDA is to heard in 2 months. I would like my ex to leave the home but he won’t . The house and mortgage is currently in my sole name. It has not been an amicable divorce and we do not speak to each other . It’s a terrible atmosphere to have our children live in. I cannot be certain that we will agree and settle financials by the end of the year. I would like him to leave the home. He owns another flat nearby, which is rented out and earns over 100k. Can I ask him to leave. Would really appreciate your response.

Many thanks, Rose

B - August 28, 2015 at 8:06am

I am currently going through an horrendous divorce where my ex refuses to agree any finances re house etc. his solicitor sent me a form to sign for him to sever tenacy on the jointly owned property. I have not signed it. Can he still sever tenacy simply by sending it or does it have to be signed by me?

Mike - September 2, 2015 at 2:27pm

I am just about to purchase a new house with my girlfriend (soon to be engaged). I am paying for the deposit, stamp duty and all associated costs for purchasing the house however she wants to contribute on the mortgage/bills and be seen as a joint tenant. If we did split up, would she automatically receive 50% share of the property? Or would the courts split this based on the amount of contributions from each person?

Marilyn Stowe - September 2, 2015 at 4:00pm

Dear Mike
This enquiry prompted me to to drop everything to reply to you! I cannot sufficiently stress how vital it is to protect yourself so that in the event of a split you will get back what you put in and then share the profit as you may agree if she is indeed to contribute to the outgoings. If you purchase as a joint tenant then it is almost certain that if the relationship ends, she will get half of the entire profit. Id advise you not to do that if there is a substantial disparity in contributions.
You need to think what you would want back if the relationship breaks down, and of course, it just might. Discuss it with your solicitor. You can have a Declaration of Trust drawn up and purchase as Tenants in Common so that if this relationship does end your contributions to the property are protected. Promising to pay towards the mortgage and bills doesn’t sound to me as good as paying a cash deposit stamp duty and other costs and if shes being fair she will understand that.
You should also make a will leaving your property to each other if that’s what you want too or leaving your share to whomever you wish. Remember too that getting married invalidates a will unless the will expressly states it is made in contemplation of the marriage.
Your solicitor should raise all this with you, as these are important legal areas to cover.
Regards
Marilyn

Luke - September 17, 2015 at 10:36pm

Mike, Marilyn is a very experienced lawyer and you should certainly listen to her advice, however, I would be more worried about the “getting married” bit – once that happens then financially she owns you lock stock and barrel if and when she opts for divorce !

It’s your life – but know what you are getting into 🙂

jane - September 17, 2015 at 6:43pm

Hi

I separated from my Husband 4 years ago. We have 4 children together. My youngest is 8. He is threatening to take me to court to force me to sell my house. I have just received a notice of severance of joint tenancy. I was advised by my solicitor not to sign it as my ex wants 50/50 but as i have recently decorated the house from top to bottom and will be there maintaining it for the next 10 years until my youngest is 18. my solicitor said he should only get 30%. My solicitor said if i sign it at 50/50 and my ex does take me to court then the court will say i signed for 50/50. My house is own outright. Can you please tell my if my solicitor is giving me the best advice.

Peter - September 22, 2015 at 12:42pm

My wilfe took our 6 year old son to her friend and said they are not coming back unless I move out of the house. We are married and have a joint mortgage, house is in positive equity. She said she does not want to sell it and she wants to live in it with our son. I don’t have much chances of staying in the house with my son, do I? There was never any violence/abuse etc. If I move out, should I keep paying my half of the mortgage? I could only afford to do that if I rent a room… Mortgage was always paid from our joint account which is now changed to my single account. She wants the mortgage to be paid from hers. Thank you.

jb - September 23, 2015 at 4:47pm

Reading all these comments has kind of been very helpful although i find myself in a situation where my long term partner has walked out of our home we own as joint tennants – i originally put the deposit and more money into the property in good faith and yes stupidly did not sign anything . I have been advised to sever joint tennancy – however is there anyway i can fight for my previous equity back through a solicitor ? Would it be worth me spending thousands to try and do so ?

Mandy - October 2, 2015 at 5:22pm

Hi Marilyn. I wonder if you can help me.
My ex partner and I bought a property in 2012 via a private mortgage and my mum loaned us 115k. My mother also lived in the property with us. The relationship broke down and I moved out in 2013. My mother and son continued to live at the property along with my ex, and soon his new girlfriend who also happened to be my sister. Again this relationship broke down in 2014. Again my mother and son stayed at the property. My mother has asked for repayment of the loan to rehouse herself and my ex has refused saying he basically hasn’t got and can’t raise the money. He also runs his business from the land/ yard attached to the property. Now after several months of wrangling he has agreed to market the property for sale. Although it may be difficult to sell and I feel he will still put obstacles in the way. He is still saying he only agreed to pay mums loan when he could afford to do so. Have solicitors letter saying this. I have today been sent a notice of intention to sever the joint tenancy. What benefit would there be to him doing this? Does this make any difference to the sale or securing mums money out of the equity? How can we protect her. Nothing was ever put in deeds in legal paperwork stalking her input.

Kev Dawson - October 8, 2015 at 8:11pm

My partner and I lived together for 10 years. We decided to purchase a property together but could only get a mortgage in her name as she had steady and checkable employment.
To protect my interest in the property, we agreed that I could register a Restriction with the Land Registry. We did not draw up any other agreement as it was agreed that the property would be 50/50.
We had a joint account and contributed equally to the mortgage and utility bills. I maintained and furnished the property solely from my funds.
I have now moved out, what am I entitled to?

adel - November 1, 2015 at 8:53pm

Hi please please any advise is a life line to me! I own a property with a former partner and have owned the property for 25 years, he left the property and rented and still does after 23 years, I have remained in the property bringing up our two sons, Due to me having a charge on the property by a utulity company we are now apparently automatically tenants in common. I married in 2002 to someone else and seperated in 2011, we are now going through divorce and my ex husband wants half of the whole of the equity of the property, my question is can he ask for my former partner to be excluded completely and take my former partners share as well as half of my share? He did not bring anything to the marriage and didnt contribute to the mortgage because he was aware of my former partners and myself agreement to a 50/50 split of equity on the sale of the property but now he wants 50% of everything> any advice is greatly appreciated x

dee - November 12, 2015 at 5:37pm

I lived in my council house for 16 years before i met my partner and decided to buy it on a right to buy, 50% discount due to my being a tenant for so long. my partner was named on the mortgage and deeds as joint tenant, we split up shortly after and i was left to pay the mortgage and upkeep alone.
There was a period in 2005 for 3 years when he paid the mortgage in lieu of child maintenance but the rest of the mortgage was paid solely by myself.
The house was bought as an inheritance for our children.
I have not spoken or seen him for at least 7 years but earlier this year he sent a solicitors letter stating that he wanted me to sell the house, i refused and gave details of how little he had paid, this was then dropped, now i have received a severance of joint tenancy but it states in equal shares, i would like the shares to be reflected on the fact that i have paid all mortgage and bills and also i would like to be able to live here for the entirety of my life, do i need his permission to have the lifetime tenancy

Marilyn Stowe - November 13, 2015 at 5:51am

Dear Dee
You need to see a solicitor. You need to be advised on the law and this is a new case on the subject. http://www.marilynstowe.co.uk/2015/11/09/cohabiting-couple-dispute-ownership-of-london-home/
You also need to make a will.
Regards
Marilyn

Aline - November 14, 2015 at 8:56pm

Hello,
My husband and I just separated and in the process of getting a divorce. We both live abroad. He’s renting our matrimonial home, which have both our names on the title and mortgage. I just discovered that he’s renting it to people since September. Is he allowed to do this without my knowledge/consent? Is there anything I can do?

Claire - November 29, 2015 at 6:59pm

Hi

I divorced in 2010. I was awarded the house but as I was unable to re-finance as I didn’t meet the lenders criteria, my ex remained on the mortgage in name only. The ruling was that he would not be liable for any mortgage payments from the date of the decree absolute and that I would arrange to have his name removed from the mortgage when I was able to.
He is still on the deeds but at the beginning of divorce proceedings Inhad this changed so that we longer held it in joint names.
My questions are:
Can I apply to have his name removed from the deeds with the Land Registry?
Can my ex sell the house when I am dead and keep all of the proceeds because he still jointly owns the house despite, a court ruling saying he is not liable for the mortgage and will only have contributed half of the monthly mortgage payment for 5 years? He has told our daughter he will do so and give her a little money!

mark - December 1, 2015 at 1:02pm

hi, my partner and i have lived together for 16 years and we have 2 children. 16 & 12
I lam ooking at leaving the home as our relationship has completely broken down. (no affairs etc)
we own our house as joint tenants. as do we own 4 others rented out. i need to know this one point.
if i leave should i expect to lose up to 80% of the property to my partner or as we are neither married or have any legal partnership could i expect to get approx 50 %. ? i know the kids need to stay in the home but i do need to plan for a property of my own hence the question,
many thanks
mark

Theresa - December 16, 2015 at 9:24am

Hi,
I wonder if you can help me??, I live in rented accommodation with a housing association which i moved into 14 years ago with my daughters father. both our names are on the tenancy but however he moved out 9 years ago and since then he got married. The problem I have is that he never removed his name off the tenancy agreement so all letters from the housing association still come in both names. Unfortunately for him his relationship isnt going too well and his wife will be vacating him from her property shortly after christmas. My problem is with his name still on the tenancy does it give him the right to enter mine and my daughters home??. He left us with alot of debt when he moved out to which I have worked so hard to clear and at last we are on an even keal, Im just really worried that for all ive worked for in the time that he went will be shattered if there is a clause that allows him back in.
Could you please advise to put my mind at rest before christmas.

Anai - January 13, 2016 at 12:07am

Hello,
I hope you can help. I’ve just received a solicitor’s letter instructed by my brother, who claims on my property. I bought this with my mother as a joint tenancy right to buy with both names on that too ( I lived in a council property with her) 13 years ago. She died a year and a half ago. She was retired and on benefits at time of purchase so whilst I lived away – at the time I was working in a different city- she paid the mortgage interest only out of that. I moved back in five years ago when she developed Alzheimer’s and paid the mortgage from then, I was her power of attorney and partial Carer. He never lived in the property nor paid for it. His claim is that she was not full capability when this was purchased and did not realise the implications of joint tenancy (btw, 13 years ago she had no sign of dementia) although I’ve been told he has no claim as the joint tencncy means I take ownership, I am worried.

Beverlet - January 19, 2016 at 8:28pm

My husband and I, are wanting to buy our house it of the council, am 40 and my husband is 62, are we too old, is the away to buy 50% of the council, but feel that our ages mite go against us, please some advice

W - June 8, 2016 at 5:16pm

Hi Marilyn
I’ve been married for 26 years and been the sole provider of my home. Right now I am in the process of dicorce thru mutual agreement. I just found out that in 2004 (while being in the same situation of a divorce which never took place) he secretly opened an Joint Tenant with right of Survivorships with his 3 brothers and his mom. He did this thru a Bank in my country with a firm that managed this kind of transaction, thru Virgin Island then it went to China and at the end its in some Panama Bank. This is scandal in my country and wias in the newspaper, thats how i found out, by the way I am located in Dominican Republic and we have the Napoleonic code.
Please let know if I have rights to his share in the survivorship, remember I have still not signed the divorce.
Thanks
Wendy

Name Witheld - June 17, 2016 at 8:25pm

Hell Marilyn, recently split from my partner of 15 years, we have a joint tenancy, he paid me what we decided was half the properties worth,p but there is nothing in writing. I heard he had my name taken off the mortgage but I am not sure if he would need me to sign paperwork for that and also of course the joint tenancy still exists on the Land registry. Does he need my signature to change that also? He moved his new woman in before my bed was cold so I am not inclined to be helpful at the moment!

Ian - July 29, 2016 at 8:23am

Hi Marilyn,

12 years ago my wife and I divorced. On the property we owned we became Tenants in Common so should my ex wife die, her share of the house went straight to her children. As part of the divorce we tried to get my name off the mortgage but failed, so my wife carried on paying the mortgage in the interim. I have a 5% stake of the property as a result of our divorce. I have just found out my ex wife has now sadly passed away. However, I now assume that as I am on the mortgage, I will now be liable to pay the mortgage until I’m guessing that the property is sold?
I also assume now that t95% of the house is now owned by her Children, so does that mean that technically they could keep and live in the property whilst I have to pay the mortgage on a property i have not lived in for over 12 years?
Have I got any rights to sell if they don’t want to take over the mortgage?
Thanks,

Ian

Zen - August 18, 2016 at 10:20am

Hi,
A quick one (hopefully). I purchased a house some 4.5 years back with my partner joint tenancy 80/20 with me being the 20%. I have paid all the mortgage payments since the purchase in full. My basic understanding is what ever is left in the pot I get 20%.
Is there an argument I could make to get more of the pot due to the 50/50 balance which again could be argued as the bills which she pays are not evenly matched i.e. there are 4 of them and just 1 of me living there to?

M - September 1, 2016 at 12:42am

Please help, I bought a council right to buy with my parents as joint tenants 20 years ago. I paid for the house in full and can prove it 100%. No trust deed was set up as i didn’t have knowledge of that, my solicitor didn’t explain it either and besides who thinks their parents will do a nasty on them.

I paid in full as my parents were old, on the understanding that they will live in it as long as they live or need it as a home and there after it will be my home.

My mother is 80+ an easily manipulated, my brother has convinced her that she must leave half of the property to him because he has no job or income.

Mother now wants to server tenancy to give him half even though she didn’t pay a single penny towards the purchase.
My father had always honoured our agreement whilst alive and appreciated the rent free accommodation sadly he passed away 13 years ago so now it’s my word against hers. (with regards to her being tenant for life)

the property was purchased for 40k now its worth 450k and my brother has already stated that i cant profit from it alone and he will fight me for half.

what can i do to protect my future home
thank you so much for your kind consideration

kindest regards Mo

Juno - October 24, 2016 at 8:16pm

Dear Marilyn,

Could you please advise on my set of circumstances. I bought a house with my partner, we are not married, but do have children together. My partner does not work, I am the sole breadwinner. Our relationship ended when i discovered infidelity. After a brief period of co habiting my partner moved out to rented as they could not afford to pay the mortgage with no income. I could also not afford to move into rented and pay the mortgage and the child maintenance. At this time I had the house valued by three separate agents. I agreed an equity release sum, which my ex partner was happy with, but also drew into that agreement about child maintenance. My ex refused to sign with this element on.
I am worried that if property continues to rise in value, and I continue to repay the mortgage that the amount of equity will increase whilst were are at an impasse. I have my children every weekend, pay a large portion of my wages on maintenance, take the children on holiday and buy clothes, and large birthday gifts. This is not sustainable for me.I also want to move on. I feel that my life is pressed on pause.
A friend has suggested that I take out an equity release on the property, as although my partners name was on the deeds for the house, they were not on the mortgage.
Is this possible? I would consider doing this if it were considered reasonable?

For the sake of the children I want to keep all as amicable as possible. I do not really want to go to court, but cannot plan ahead with this hanging over me.

Any help or suggestions would be appreciated

Regards

Andy Cawdell - November 14, 2016 at 2:01pm

Law of Property Act 1925 section 36 (2)

A mate has been given a letter quoting Law of Property Act 1925 section 36
(2) by his wife saying something like their joint ownership is severed and that a tenants in common “deal” has been created

1) Does this have a notice period e.g. answer in 28 days or it goes ahead?

2) Can she sever a joint ownership into tenants in common without his
signature on something?

3) If a tenants in common trust deed has been created that speaks to what happens on sale etc should he have a copy of it?

Thank youi

Marilyn Stowe - November 14, 2016 at 2:20pm

Dear Andy
People get very uptight about this but they shouldn’t.
A joint owner of property is entitled to choose whether to own it as joint tenants or tenants in common. Unconnected people usually purchase as tenants in common. Couples who are married or living together usually buy as joint tenants. But they can choose to buy as tenants in common, if for example they’ve contributed different shares into the property and there is a Declaration of Trust to support it, and at any time either of the joint tenants can “sever” the tenancy so that thereafter they own as tenants in common. This is commonly done when a divorce is begun. Why? Its because of a rare possiblity that one of the parties might die before the case is sorted out.
In law, after severing the joint tenancy and becoming tenants in common, they both still own the property jointly, they both need to sign to sell it, but the difference is that if one party dies, the other does not automatically inherit the other half share, instead it passes as left by will or under the Intestacy rules if there is no will.
So there is no need to panic. Your mate needs to make a will. But do bear in mind that in divorce it doesn’t matter how they own as tenants in common or joint tenants, the court can alter the 50/50 share anyhow.
You can check that it has been severed by doing a search at HM Land Registry. You dont need the other party’s consent because all it is doing is ensuring that her or his share passes as they wish by will instead of automatically to each other.
Regards
Marilyn

Andy Cawdell - November 14, 2016 at 5:39pm

Thank you re “You dont need the other party’s consent because all it is doing is ensuring that her or his share passes as they wish by will instead of automatically to each other.”

But it that means unless there is a deed or will saying othewise, if the heirsof one half want their money out of the house and as a result it has to be sold ASAP after one pary dies that changes the expectation of the other living there until death or infirmity

Abdi - December 15, 2016 at 6:51pm

Hi Team,

My friend married his partner 1986 and they separated 2012. He went to the courts and got the marriage dissolved. However to this day her name is still on the housing association tenancy agreement and he would like to remove her from the this legal document however he cannot locate her. How else can he remove her from the tenancy agreement.

All this has come about because he want to to downsize and swap the house via Mutual Exchange with another tenant – he can’t do so without her signature.

Thanks
Abdi

Dawn - January 5, 2017 at 4:50pm

I bought a house with my partner as ‘tenants in common’ with unequal shares. We then married a few years ago. Our wills state that the surviving partner inherits the house. So assume this covers us, from having to sell the house if one of us dies, but would the survivor be liable for Inheritance Tax if this were to happen? If so is the deeds we need to get amended to ‘Joint Tenancy’
thanks
Dawn

Andrew - January 5, 2017 at 9:22pm

If one of you dies leaving a will in favour of the other that protects the survivor against Inheritance Tax whether you were joint tenants or tenants in common.

Clients sometimes need to be reminded that that means “officially” married, “doing the paperwork”, the Revenue don’t accept “common law marriage”. No certificate, no tax exemption. Some couples probably marry for no other reason!

DAVID - January 19, 2017 at 4:48pm

Hi Marilyn ,
I hope you can help me! My ex-partner and I purchased a property 25 years ago she left the property in 2015 and now she is talking me to court for her share , we bought the property as joint tenants 50/50 but she never contributed money to wards mortgage payments what so ever . She also is after 50% of contents i have let her take anything that belongs to her over the last 18 months even the new car. We have a son who is at school but lives with me and i have offered her 40% of the valve but her solicitor is demanding 50 % is there anything i could do. I have tried negotiate with her solicitor but failed and now court proceeding have been issued.
Any help would be wonderful

Thanks David

Toni - March 30, 2017 at 7:20pm

Hi Marilyn
I hope you can provide some advise to my Mum. Her partner bought a house and put her names on the deeds. The tenancy was recently changed from joint to tenancy in common by notice from him. He abandoned her back in September of last year and has asked that she only speak to him through a solicitor. His daughter has sent a text saying he will go to the house on Sunday to collect his things. As this weekend is the first anniversary of my brothers death he has been asked not to go this weekend and to contact her solicitor as solicitors are the mode of communication he requested. He has come back to say legally he has the right to access and collect the things and is just going to come on Sunday. Can we ask him not to come this weekend and arrange another time? Can he have access whenever he wants? Thank you

Daphne Lawrence - April 2, 2017 at 12:41pm

Dear Marilyn I live I Jamaica but I read your articles and I am wondering if you could give me some advice.

John Price - April 21, 2017 at 5:16pm

Dear Marilyn,

I have used your blog and have been successful in a lump sum of former matrimonial home (FMH), at the final hearing for financial remedy.

The Judge (recorder) has ordered that I register a charge so I receive a lump sum equal to 50% of the value on the FHM, so that this happens at the right time after the children finish University.

The property is in my ex-wife’s name, I have moved out for more than 3 years now. I have been searching for ages for an answer as to what to do. I fee if I wait any longer my 3 year LIP battle will be pointless.

The Land registry have asked me to read PG 19 and 24. I am still none the wiser.

What charge do I register at the Land registry to a Unilateral charge or a Restriction?
What Capital Gain Tax do I have to be prepared for now and in the future?

I have been self-repping, so I would appreciate any assistance.

John Price (s)

K - June 1, 2017 at 3:12am

Hi PLEASE can I get some advice, my Dad remarried in 1983 and died in September 2016 and my sister and I have just found out that due to dad and stepmum having a Joint Tenant agreement that no one realised they had , we are to be left nothing.
My Dad wrote his will at a Solicitors around 4 years ago and left me and my sister a third of the property upon the death of our stepmother as a third was put down as a deposit by him and stepmum leaving her 2 thirds to her daughter also in a will.
No mention was made of changing to a tenants in common by the solicitor, who was the same solicitor who did the legal stuff when they bought their house, no one was aware on either side that it would all go to the other spouse and we all thought that the wills would be honoured on both sides. The solicitors have already confirmed that a deed (Think its a deed of trust ?) should of been made at the time of the Will and it’s their fault . Do they note check the legalities of property before charging nearly £1000 for the will.
As our stepsister was called a ‘Grabber’ by Dad and she is refusing to enter any dialogue as she knows now that she will inherit all the property. My Dad would be heartbroken if he knew…..can anything be done, stepmum has dementia so stepsister has power of attorney. Absolutely devastated as its around £300K between me and my sister x

ria1952 - June 3, 2017 at 4:19pm

I disagree, read: counselorlink.com/wp-content/uploads/2011/06/Divorce-Children.pdf

Marie - July 9, 2017 at 9:16pm

When my parents bought their house my brother was put on the mortgage. I know he never contributed to paying anything towards the house. My mum does not want her share of the house going to my brother as they have fallen out but wants to give it to me. Where does she stand on this?

Jason - July 17, 2017 at 12:41pm

Me and my partner have a joint mortgage……….due to reason that don’t really need elaborating on our relationship is coming to a close and whilst he has offered to buy me out, the break up of our relationship is my fault and I wish to sign the property over to him?

Is it possible to do this?

Eddie - July 26, 2017 at 10:59pm

My wife die 6 months ago we lived in the house she had with her first husband. I have now discovered that there is a joint beneficial tenancy still in place and her ex husband is now claiming he owns the house. I have lived here for nearly 20 years and it was understood that the house would be signed over to my wife when the mortgage was paid.
What can j do as my wife didn’t leave a will and I an therefore her beneficiary. Can I keep the house?

Cameron Paterson - July 27, 2017 at 4:37pm

Solicitor Jane Gray responds:

“Broadly, there are two separate ways of owning property in joint names: Property held as joint tenants will pass automatically to the survivor outside the terms of a Will. In contrast, property held as tenants in common will pass in accordance with a Will. It is very important that co- owners establish how they hold joint property. In this case your wife’s share of the property passes to the co-owner by operation of law. If however you can prove that there was an agreement in relation to the proceeds of sale of the property, then you might be in a position to argue that the co-owner holds part of the proceeds on trust under the terms of such agreement. These rights are known as equitable rights and the Court will in certain cases uphold such rights. The fact that you have lived in the property over 20 years is also a relevant factor in asserting your own equitable rights, particularly if you have made contributions to the fabric of the property.”

Andrew - July 27, 2017 at 12:51pm

You can apply under the Family Provision Act but hurry. The time limit is six months from the grant of letters of administration to the estate. You need legal advice NOW! Good luck.

Louise - August 31, 2017 at 8:20pm

Hi

My ex has asked if we can now change our joint tenancy to tenancy in common, as quite rightly he wants his new wife to inherit along with our children. My only concern, as I can see many benefits from this change, is that his will would enforce the sale of the house to honour his wife inheritance. At the moment I still live in the house, with his children (all over 18).

Do you know if a will would enforce that?

Thank you

Louise

Platinum Accounting - February 3, 2018 at 11:25am

The extra charges of a government on the purchasing of property in the form of general country tax can be eliminate easily with in a seven days according to the rules and regulations of a government,If you write an application with the authentic reasons for a elimination of property tax and also attached a legal documents of a property tax pairs after that submitted in the government office by the tax layers which is helpful for you to approved the claim of your property tax in the seven days without any allegations of a government on the application of your property tax ,Remember don’t write any irreverent reasons in the applications of property tax you want to submit in the office of government and also don’t attached any illegal or extra document of property which increase the chances to refuse or neglect your claim application ,So keep it in your mind all the instructions and requirements given to you by the tax layer after concerning this kind of matter according to the current policy of government .
Thanks

Anthony - February 3, 2018 at 7:27pm

Evening my brother in law has just seperated from his wife of 33 years and she’s had a solicitor send him notice of change from joint tenancy to tenants in common severing the joint tenancy (she committed adultery and has moved in with her new man ,where does this leave my brother in law as she’s now saying she wants rent on her part of the property he still lives in from Mr down

James - February 14, 2018 at 1:03am

When my ex-partner and I split up back in 2008 (we never married), we had a Consent Order made in which I agreed to relinquish my interest in our property in return for a legal charge (a percentage of the gross value), that would be triggered by certain events, including her death.

Last year, sadly, she did pass away, and left the house (minus my share) to her three children (two of which I am Dad to).

I then discovered that our joint tenancy had never been terminated (this was meant to happen, but apparently didn’t – possibly because she couldn’t persuade the bank to remove me from the mortgage, though I’m not sure about this).

Scenario A: So, does the Consent Order take precedence ?… In which case the house is presumably hers to distribute despite the Joint Tenancy issue, and becomes part of her estate, as does the responsibility for paying off the mortgage prior to distribution to beneficiaries ?

Scenario B: Or does the joint tenancy take precedence, in which case I presume ownership automatically passes to me, the house does not form part of the Estate, and it then (I assume) becomes up to me to pay off the outstanding mortgage debt, sell the house, and then distribute the proceeds ? .. and if so, how ? Here, I note that while I’d be happy in principle to follow its intentions, I’m have to invent a new calculation to achieve roughly the same outcome that Scenario A would give, because the shift in responsibility for the mortgage would change the balance of assets and debts assumed when the Consent Agreement was drawn up.

Or is there a Scenario C ?!

Any advice gratefully received.

Cameron Paterson - February 14, 2018 at 9:57am

Good morning and thanks for your message. We may be able to get you some advice from a solicitor. If you could let us know roughly which part of the country you live in, we will ask a solicitor from the nearest office to get in touch with some thoughts on your situation

James - February 15, 2018 at 12:35am

Thanks Cameron. I live in the Exeter area. If you know someone local who could advise, please do let me know.

Paddy - April 4, 2018 at 6:25pm

Hello, I wonder if this has ever been asked, I was in a relationship with a woman for approximately seven years, during which time she did not work save for a few weeks part time working in a cafe.
When we met, I helped her with her divorce, and her custody battle for her children. From her settlement (That I helped her achieve by filling in all of the forms and answering all of the questions for her, at her request and in a manner that was succinct and accurate helping her through the court cases and the numerous cross allegations of assault and harassment between her ex husband and herself) I negotiated and purchased for her (in her sole name) a property, which I renovated, and ultimately marketed and sold at a huge profit, whilst doing the same for myself twice with the agreed sole intention of combining our money to purchase a joint property, which we did. We had legal advice from a conveyancing solicitor we have both used before independently and as we had always intended decided together to purchase as JOINT TENANTS, we lived in the property together, I paying for the bills and food etc etc and her having retained a portion of the equity raised before from the sale of her house, paid for a garage to be built to improve the property. About a year later we purchased a second property again after advice from the same solicitor we agreed that we would hold that property as JOINT TENANTS, Her putting down a cash deposit (the remainder of the profit) and we took out a joint mortgage to finance the rest. The property was let and she received the rent as a way of financial independence.

Last year we separated, she elected to stay in the second property and me in the first, the value difference means that the first (My home ) must be sold to give her the balance of equity.
Up until recently I have been under the impression she would as we discussed agree to the 50/50 split, and on that basis i offered to obtain a mortgage to clear the one on her property and a cash lump sum, which reflects the 50/50 division.
Now she has said that she want a percentage split, which seems a TENANT IN COMMON basis, and that she rejected my offer and is intending to take the matter to court.

I believe/d that as we had effectively been in this relationship for this length of time, made not one but two separate house purchases as JOINT TENANTS after receiving independent legal advice and I had supported us, holidays, food, clothes cars etc etc that it would be straightforward and the law would be clear. Now with the threat of court action and the upset of my son who lives part time at home doing his A’levels I am worried about where I stand. Please if you have the time would you give me your opinion. Thank you so very much.

Cameron Paterson - April 5, 2018 at 9:31am

Hello – if you let us know roughly which part of the country you live in, we’ll ask a solicitor from the nearest office to drop you a line

Simon jones - April 12, 2018 at 9:15am

Hello im currently in the process of divorce and would like some clarity on my situation. We have a 1yo daughter married last April but cohabited for 4 years previous. When we brought the property 3 years ago(we rented for a year 1st) we set up a declaration of trust to protect my sole deposit of 20k then split the remaining 70 30 in my favour as at that time it was how we both contributed to the bills mortgage ect. We’ll be co parenting on equal terms. Ill have her Thursday to Sunday and every other Sunday evening. As this works with our work commitments. I work 40hr week earning approximately 26k pa while she works 26hrs earning 10kpa. Would the declaration of trust still stand protecting my deposit id be happy to amend the unequal split. Our house value have gone up 10k since purchasing. What would the courts view be. Currently my wife wants to move out of the property. And i am in a position of lending more on the property. Im 29 shes 26.

Thanks

Cameron Paterson - April 12, 2018 at 10:22am

Hello – we may be able to get you some advice. If you could tell us roughly which part of the country you live in, we will ask a solicitor from our nearest office to drop you a line with some thoughts

Simon - April 12, 2018 at 10:52am

Suffolk

Naaz - April 12, 2018 at 11:20am

My question is how can I save my financial Assets and my house from wife in near future?

At the moment i don’t have any children.
i have one house which is on mortgage value of the house is 150k and mortgage left to pay 50K
i am the property owner because i had this from long time ago.

now if i was to save this protect my house in future how can i?

do we allow to sell my house to my brother without any money transaction (just pass this house to him on deeds) after this can my wife can claim it later on in life ?

shall i do legal Charge which i can add my brother name ?

is there anyway i can protect my house from my wife in Future?

Thanks

Cameron Paterson - April 12, 2018 at 11:25am

Hello – we may be able to get you some advice. If you could tell us roughly which part of the country you live in, we will ask a solicitor from our nearest office to drop you a line with some thoughts

Lyn - June 19, 2018 at 10:31pm

My ex husband and I separated in 2008 after a 20 yr marriage. We agreed to split the proceeds of our marital home 50/50 but not to sell it for less than 350k ( it has consistently been valued at 280k). At the time my ex was living in the marital home in which we were tenants in common and I was renting elsewhere. My ex paid the mortgage (which he had changed to an interest only mortgage without my consent) until March 2011, he then wanted to live else where and I moved back in with my new partner, with the intention of doing the rather neglected house up to sell. I’ve paid the mortgage by myself ever since and also had to cash in my pension to pay for renovation/maintenance work to the house.
Does the 50/50 split still apply or will the money I’ve spent be taken into consideration when the house is sold? I’m not able to get an amicable agreement from my ex at this stage. Also, do I have a claim against the bank for changing the mortgage to interest only with out my consent? My ex earns 10xs as much as me, and I will not be able to get another mortgage so I am reluctant to sell under these conditions.

Kate Nestor - June 20, 2018 at 9:36am

Thanks for your comment.

I have passed on your details and a member of the Stowe Family Law firm will get back to you shortly.

Kind regards,

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