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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33297
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I am a expatriate living in NZ. In 1994 I was in the RAF based

Customer Question

I am a expatriate living in NZ. In 1994 I was in the RAF based at RAF Manston in Kent. I decided to buy a house in Paignton, Devon for my parents retirement and aged care. I purchased this house with a deposit of GBP 6300 paid by my parents. Since then I funded the repayments through a combination of my RAF pension and endowment policies. I had had the endowment policies for a number of years as security against various properties.

In 1994 I reitred from the RAF and got married in July 1995. In July 1998 I emigrated to NZ with my wife and two children.

My wife left me two years ago and we about to settle our NZ affairs. According to NZ law possession are divided 50:50. My wife will receive 50% of the net estate.

However, she is also seeking 50% of my parents home.

The NZ courts are not considering the UK property as it is immovable outside NZ.

However, she has had a restriction placed on the property preventing me from selling it and is seeking , as I say, 50% of the value.

As it was bought before we were in a permanent relationship and paid for with my RAF pension from before we were in a relationship I don't believe she has a claim.

The property is in my sole name. It was a gift to my parents for them to occupy rent free. They have maintained it and made improvements to it over the intervening years, such as double glazing, stair lift etc.

My mother passed away a few years ago but my father who is 93 still lives there semi-independently. My sisters, who both live in the UK, and I are now at the point where we consider the sale of the house to fund sheltered care of some sort for him. This was always my intention.

I am attempting to find someone to act on my behalf in the UK but obviously don't want to have use all of the value in the house to fund legal action instead of care for my father.

I do not know if I am entitled to legal aid in the UK but as the property has an approximate value of GBP 210000 and is mortgage free I suspect not.

Can you help in any way?

Obviously there are wrinkles in the situation - aren't there always?

Thanks

Robin
Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question
I shall do my best to help you but I need some further information first.
What is the nature of the Restriction that your ex has placed on the property?
Claire
Customer: replied 3 years ago.


Not sure what it's called but it means I can't sell it without her agreement.


 


From memory it is lodged with the Land Registry? Unfortunately it was an e-mail and I can't put my hands on it right now.

Expert:  Clare replied 3 years ago.
Hi
There are different types - it is important to know which one as it will help in explaining what needs to happen next
Claire
Customer: replied 3 years ago.


What are the two types?

Expert:  Clare replied 3 years ago.
Hi
There are in fact number of types - the list is here
http://www.landregistry.gov.uk/professional/guides/practice-guide-19
Do any look familiar?
Claire
Customer: replied 3 years ago.


I think, looking through the guide, that this is the restriction that applied:


 


4.4.3 Applications made without the cooperation of the relevant proprietor – the need to show a sufficient interest


Where the applicant does not have the cooperation of the relevant proprietor, they may only apply for a restriction if they can satisfy us that they have a sufficient interest in the making of the entry.


R.93, LRR 2003 contains a list of standard situations where a class of person will be regarded as having a sufficient interest in the making of an entry. In most cases, the rule identifies which of the standard form restrictions will be appropriate to each situation covered.


The applicant must give details of the nature of their interest and how that interest arose. We will require evidence to show sufficient interest in support of an application.


This evidence must be a statement by the applicant in panel 12 of form RX1 or conveyancer’s certificate in panel 13. If the interest arises from a document (for example, a court order) the statement or certificate should refer to that document and a certified copy should be enclosed and listed in panel 5. We can ask for additional evidence if necessary (r.92(4), LRR 2003).


 


Hope that helps?


 


It was obtained without my consent and prevents me from selling the property without her agreement and was I think called a "cap" on the property but might be wrong there.


 


Sorry I can't help more.


 


Robin

Expert:  Clare replied 3 years ago.
Hi
The only other one it might be would be one which actually refers to !Matrimonial Home Rights" - to the best of your memory did it?
Claire
Customer: replied 3 years ago.

Nope. We never lived in the house. She is trying to claim it as relationship property arguing that it was paid with relationship funds but it was in fact funded through my RAF pension from before we were married.

Expert:  Clare replied 3 years ago.
Hi
Have you now got a copy of the Restriction - I need to know which letter of the Alphabet was used
Claire
Customer: replied 3 years ago.


This is the information from her lawyer:


 


We attach documents that show that a restriction has been lodged over the property in the UK that is in Mr Stanfords name. Our client has given sworn evidence that this property was principally paid for from relationship property.

The restriction means that Mr Stanford will not be able to dispose of the property until either:

- a settlement is reached in NZ that includes compensation for our client's interest in the UK property or,

- failing that until proceedings are settled in the UK regarding her interest in the property.


 


Also:


 


B. Proprietorship register:


 


Title Absolute:


 


5/2/13: Restriction: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court


 


5/2/13 Restriction: more or less as above plus "without a certificate signed by the applicant for registration or their conveyance that written notice of the disposition was given to Denise Cherrie Stanford at care of RadcliffesLeBrasseur, Westminster, London ref: CSP/CAS/ 118294.01


 


Does any of that help??


 


Thanks


 


Robin

Expert:  Clare replied 3 years ago.
Hi
Yes it does thank you.
You refer to the property being funded solely by you - but how was the mortgage paid over the years?
Claire
Customer: replied 3 years ago.

From my RAF Pension

Expert:  Clare replied 3 years ago.
Hi
So from the income that you were receiving throughout your marriage?
Claire
Customer: replied 3 years ago.


My RAF pension is from before we were married but received ever since in the UK.

Expert:  Clare replied 3 years ago.
Hi
Under Uk family law this is not an argument that would work
Your RAF pension was part of the Family Income and was used to pay the mortgage on the house which would make it a Matrimonial assets for division between you
If it were a property in another country then the Uk courts would simply give her a larger share of the assets here
However if the New Zealand Court will not do this then you will be able to take advantage of the fact that your ex will struggle to issue any proceedings here in the UK relating to this property
She has made no contribution to the property in her own right so has no claim on it in property law.
If there is a final financial order within the divorce proceedings in NZ then she cannot make a further claim here.
Accordingly when you wish to dispose of the property you need simply give her notice that you intend to do so - and then go ahead and do it!
I hope that this is of assistance - please ask if you need further details
Claire

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