Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I clarify please that the property in question is in their joint names please?
I think so! It certainly was up to 3 years ago because he continued to receive a mortgage statement delivered to my address
Thanks and to your knowledge your son has not transferred the mortgage and freehold to his ex partner? Do you know if they entered into any form of declaration of trust when they purchased the property or at any stage after tht?
Has your sons ex partner paid anything towards the property? Do they have any children together?
He has not transferred anything to his ex partner
They have a son and she has continued to pay the mortgage in full, after the initial 3 years, so 7 years in total
Thanks. How old is their son and could his ex partner afford to provide accommodation for their son on her own do you think?
Their son is 11 and as she now has another partner I should think she is financially secure
Thanks. If your sons ex is a joint owner of your sons property and they did not enter into a declaration of trust or have any other evidence to show how they agreed to own the property, then the recent decision in the case of Kernott makes it quite clear the starting point for ownership is 50% / 50% in terms of shares in the property. However this can be shifted if for example your son can show by reference to financial evidence that he has contributed exclusively to the property and that there was no intention on his part to make a gift of such contributions to his ex. Equally in respect of any contributions your son has made to the property since his split, he would have a strong basis to show that these contributions would go to his credit as opposed to his ex's in respect of any calculation as to their respective shares in the property.
His ex is jointly liable for payment of any mortgage with your son. If he is not living at the property (though he has a right to as a joint owner unless they have been violence and his ex has a court order against him) he also ordinarily has a right to be paid something called occupational rent to compensate him for his exclusive enjoyment of the property though because she is living there with his son this is unlikely to be granted. There is no hard and fast rule as to what occupational rent should be in terms of money but courts generally rule that it should be equivalent to the interest element repayable against the mortgage. As above though occupational rent is not usually ordered in cases where there are children involved such as this
Your son or his ex have a a right to apply to the courts for an order for sale under the Trusts of Land and Appointment of Trustees Act to realise your share in the property if they cannot agree between them. However all of this is subject to what follows because there are children involved.
If his ex has day to day custody of his children they had together, she can apply under schedule 1 of the Childrens Act and a judge has discretion to make orders in respect of the property for the benefit of the children until they reach 18 years of age or finish education. He may consider an order that the property is made available to her until such time as the children reach 18 or finish education for the benefit of the children or some other financial order in respect of the property whereby a greater share of the equity is made available to you. The judge's determination will depend greatly on your individual levels of income and circumstances. If she has a new partner that is providing for her financially the chances of such an order is reduced.
The main purpose behind schedule 1 orders is to ensure adequate maintenance in particular accommodation needs for your sons child. If this is provided for then the impact of the above legislation will be less pronounced in this case particularly if she has a new partner as above.
accordingly you starting point, if your son can demonstrate that apart from the joint ownership of the property, their respective finances were kept separate during their relationship and also that there was no intention to gift any sums he has contributed towards the property to his ex-partner after their separation fortunately be a strong presumption, that you may seek to shift his entitlement away from a 50-50 presumption towards a greater share for him if he can demonstrate that he has contributed more to the property and his ex-partner
ideally, they will be able to agree between them financial split however if this is not possible, initially mediation something worth considering and failing that your son can consider making an application to the court for an order as to the division of property between them.
Is everything above I can clarify for you?
Thank you it is all completely clear but we would like to know in addition if his residence in the USA would prevent him proceeding as you suggest
His residence in the United States does not prevent him from exercising property rights in the United Kingdom. the only issue in this respect will be a practical one in terms of how he conducts the matter if it is disputed by his ex-partner from the US. In such circumstances, he would likely need to appoint a representative such as a solicitor to represent him unless he is able to travel back to the UK to enter into mediation himself
is there anything else I can help you with?
No, Thanks very much
If I can assist any further as the situation develops please do no hesitate to let me know.
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