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UKfamsol
UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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My husband is an alcoholic and counter drugs too I have been

Customer Question

My husband is an alcoholic and counter drugs too I have been married to him for 14 years . I was involved in an arranged marriage before I got divorced and married my present husband . I had a few properties before I married him and by remogaging them I bought more buy to let properties . In 2010 after my husband was involved in a car accident with my young son (12 at present) we have been on social services spot light. Due to his alcohol and drug intake and after 7 unsuccessful detox, I was advised by social services legal department that my idea of putting all properties on trust for my 4 children was a great idea. In July 2010 all properties with my husband agreement was put on trust and beneficiaries are my 4 kids.( neither he or me benefit) I have decided enough is enough and I am going to go for divorce as my kids no longer accept my husband alcoholic behaviour .
I would like to ask if my divorce means he can get anything from the trust/ properties ??
Submitted: 3 years ago.
Category: Family Law
Expert:  UKfamsol replied 3 years ago.
Hello and thanks for your question.

Once a divorce petition has been filed at court, either party can ask the court to decide how the matrimonial assets should be divided if the couple cannot agree between themselves. The matrimonial assets are everything in your name, everything in your husband's name, and everything you own jointly. The parties are under a duty to provide full financial disclosure to each other and to the court. The court starts from the position that the assets should be divided equally and then looks at reasons why that should not be so eg if one person is to provide a home for the dependent children, they can argue for a greater than 50% share, or if one person has an income significantly less than the other, they can argue for a greater than 50% share.

But before looking at how the matrimonial assets should be divided, there can be an argument - as in your case - about whether a particular asset is or is not a matrimonial asset - ie should the properties now held in trust for the children be counted and added into the matrimonial pot, or should they be ignored when it comes to deciding how much each of you should have on divorce.

Unfortunately, it seems that the family court decides this issue case-by-case, rather than having a clear position for all cases involving trusts.

Issues that will be important will be whether the documentation is clear that the only the children are beneficiaries, that it is recorded that your husband knew and consented to trust being set up for the benefit of the children, and crucially, whether you could access the assets of the fund for your own benefit, rather than for the benefit of only the children. The family court as a general rule is very reluctant to disregard any assets when it comes to deciding what is or is not a matrimonial asset. If you alone are the trustee, or even if you are the trusteee with your husband, the court might decide that the assets of the trust fund are a resource availabe to you - if so, the court will decide that the trust is a matrimonial asset, and the value of the properties held by it will be added to the total of the matrimonial assets to be dividied on divorce.If the court did take this view, it would not necessarily mean that any of the properties held on trust would have to be sold, but that you would get a smaller share of the other assets.

This article gives some helpful pointers:-

http://www.familylawweek.co.uk/site.aspx?i=ed40099

Sorry that I wasn't able to give you a more clear-cut answer - but family law can be like that. I hope this helps anyway and I wish you the best of luck.


Thanks and best wishes...




UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience: Very experienced specialist family law solicitor, qualifed in 1994
UKfamsol and other Family Law Specialists are ready to help you
Expert:  UKfamsol replied 3 years ago.
Hello again

I see that you have viewed my answer but not accepted it. Is there anything that you feel I have not answered or that is not clear? Please let me know - I'll do my best!

Otherwsie, I would be most grateful if you woudl kindly accept and rate my answer.

Thanks and best wishes...
Customer: replied 3 years ago.
My husband and I concerted to all properties to go on trust for our children as most properties were mine before I married him. We registered them with land registry RX1 .
Both of us our trustees but I managed the rental and pay mortgages and all bills relevant to all properties as when it was on joint account we had problem as he was using the rents for his use , we agreed I remove him from joint account as I could not cover the shortfall
Now I have been managing the rental since 2010 and any extra expenses or short fall I cover with my money
How a judge can allow him to have my children inheritance that came from my father.
Expert:  UKfamsol replied 3 years ago.
Hello again.

Yes these are all points that you could make to the district judge if the case goes to court when you divorce - all I'm saying is that cases involving trusts in family law are defintely not straightforward, and the court mostly prefers to see all assets as matrimonial assets, so you might have difficulty persuading the xocurt that these are not matrimonial assets - but of course you have every right to put the argument forward.

But what I forgot to say in my previous answer was that if you and your husband can agree between yourselves, that the properties in trust for the children should NOT be counted as matrimonial assets, then that's absolutely fine - it's only if the two of you don't agree, that either of you need to apply to the court to ask the court to decide.

So my best advice to you is to negotiate with your husband, NEGOTIATE,
N E G O T I A T E ! especially as going to court is stressful, time-consuming and expensive.

You can negotiate either between the two of you, or via solicitors' correspondence, or via mediation. Mediation is a round-the-discussion with a trained and neutral mediator whose aim is to help couples find a fair compromise that works for all concerned.

Here's where to find a local family mediation service:-

http://www.familymediationhelpline.co.uk/find-service.php

Expert face-to-face legal advice might help as well. Here's where to find a specialist family law solicitor:-

http://www.resolution.org.uk/findamember/

If you can reach agreement with your hiusband, a solicitor can prepare a draft consent order for you both to sign, to send to the court for the court's approval. Once approved by the court, a consent order is as binding on the parties as a court order made following contested proceedings.

I hope this helps.

Thanks and best wishes...


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