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UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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My daughter is separated from her partner and they have two

Resolved Question:

My daughter is separated from her partner and they have two children aged 2yrs 11 months & 1 yr 9 months. The older child has been diagnosed with autism. They share own a house with my husband although the year they lived here her partner paid the mortgage and she paid all the utility bills and groceries. For the last two months he has not paid the mortgage but does pay maintenance when asked! The agreement was, the partners name would come off the mortgage. The deposit for the house was paid by husband and all renovations and improvements to the property where also funded by my husband. The partner has now said he wants half the property. Can you please advise?
Submitted: 2 years ago.
Category: Family Law
Expert:  UKfamsol replied 2 years ago.
Hello and thanks for your question.

I need a bit more info to be able to answer:

Is your daughter married to her partner? If she's married to him, what other assets are there?
If I've understood you correctly, the house is jointly owned by 3 people - your husband, your daughter and your daughter's partner. If I've got that wrong, please tell me whose names are ***** ***** title deeds?
Do all the joint owners have equal shares? If not, what share do they each have, and how has that been recorded?
Whose names are ***** ***** mortgage deed?
How long ago was the property bought? What was the purchase price?
How much did your husband pay as a deposit? Roughly how uch would you say he's spent on improvements etc since the house was bought?
How much is the house worth now? and how much is the total mortgage outstanding on it now?

I'll coem back to this question tomorrow when I get home from work, and with the extra info you give me, I'll be able to answer your question.

Customer: replied 2 years ago.
Hi - thank you for your reply.
Information you requested.
My daughter is not married and yes all three are on the mortgage deeds. My and her ex partner are named on the house deeds.
Monies invested into the property are approx:
Deposit: £ 30,000
Improvements: £ 13,500
Solicitors fees: £ 1,150
The property was bought in October 2012. There is a remaining balance of £ 117,000.00. Value of the property now would be in the region
£ 220,000.00. Sorry for not responding sooner but I have had to gather this info together.
Look forward to your response
Expert:  UKfamsol replied 2 years ago.

Hello again and thanks for the extra info.

Payment of household bills, child support and solicitors' costs will not have any effect on what each party is entitled to from the equity in the property. Unfortunately, as your daughter was not married to her ex, the court can only consider what is relevant under property law.

It's an unusual situation – to have 2 people named on the title deeds – your husband and your daughter's ex-partner, but yet to have 3 people named on the mortgage deed – your husband, your daughter and her ex-partner.

Dealing with the mortgage deed first of all. To remove the ex-partner's name from the mortgage will require the consent of the building society. This is because the mortgage is a contract between the 3 people named on the deed, and the building society, and the 3 people all owe the mortgage debt jointly and severally. That means that if the mortgage gets into arrears, the building society can come after any of the three named for the whole (not just a third) of the mortgage outstanding. So for the building society, the more people named on the deed, the lower the risk to the building society.

Usually a building society will lend only up to 3 times the annual income of the people who want to take out the mortgage. As the mortgage outstanding is £117,000, that means that however many people are named on the mortgage deed, their combined incomes must equal at least £117,000 / 3 = £39,000.

So to get the building society to agree to release your daughter's ex-partner from his liabilities under the terms of the mortgage deed, for the current amount of mortgage, your husband and your daughter together will need an combined income of £39,000.

They need to go to a mortgage broker to see what's the best remortgage deal for them.

With regard to the property, if there is no deed specifying what shares each owner has in the property, the assumption will be that the shares are equal shares, which as there are ony two people named on the title deeds, means 50:50, which is to say that the legal interest that your husband and your daughter's ex-partner has in the property is 50% of the equity each.

The equity is the value of the property less the mortgage outstanding ie £220,000 - £117,000 = £103,000. 50% of the equity is therefore £103,000 / 2 = £51,500.

However, there are two types of interest in property – the legal interest which appears on the transfer deed and any other documents – which in this case is 50% each – and the equitable interest.

A person's equitable interest in property (also called a beneficial interest or a financial interest) is an interest which does not appear on any documents but which is calculated by considering what financial contribution they have made to the property, either at the outset eg by providing a deposit, or ongoing by increasing the value of the property. There is no scientific formula unfortunately. You didn't say what the purchase price of the property was in Oct 2012 so I will assume that it was about the same as the current value of £220,000. Assuming that the improvements were carried out just after the house was bought, I would estimate that your husband's equitable interest would be £43,000 / £220,000 = 19.55 % say 20% for ease of calculation. If your daughter's ex partner paid the mortgage for a year then the capital part of the mortgage payments mean that he also acquired an equitable interest – and whoever has paid the mortgage for the rest of the time that the property was owned has also acquired an equitable interest.

The simplest formula might be to say that out of the £103,000 equity, your husband gets back his £43,000, and that the expartner then gets ½ of the balance ie £103,000 - £43,000 = £60,000, of which the ex-partner gets £30,000.

Or your husband gets 50% x £103,000 = £51,500 plus a further 20% x £103,000 = £20,500, with the ex partner getting the balance – ie £103,000 - £51,500 - £20,500 = £31,000

This is the kind of question I would refer to a specialist barrister, because it's not straightforward at all.

So if the expartner's share is say £30,000, and you don't have that sum to buy him out, that means that the money will need to be raised eg by increasing the mortgage to £147,000, or the house may have to be sold. If the mortgage needs to be increased to £147,000, that will only be possible if your daughter and your husband have a combined annual income of £147,000 / 3 = £49,000.

So your daughter and your husband need to go to a mortgage broker and see what they can raise given their incomes and then make an offer to the ex-partner. But I would strongly recommend getting some face-to-face legal advice before making an offer to settle. Here's where to find a specialist family law solicitor:-

If no agreement can be reached as to what the ex-partner's share should be, as a last resort, either your husband or your daughter or her ex-partner can apply to the county court for an order under the Trusts of Land and Appointment of Trustees Act 1996, commonly known as TOLATA or TLATA.

There are only 2 orders that the court can make 1) a declaration of rights in property, which would set out exactly what share of the equity each person has and 2) an order for sale (which would also specify how the net sale proceeds should be divided in accordance with the shares specified in the declaration).

However, the order for sale can be suspended until the youngest child reaches 18 – so that could be a bargaining point for your daughter and your husband eg if he does not agree a settlement figure, and your husband & daughter have to go to court, he runs the risk of not getting his share of the equity for nearly 17 years, AND he would remain on the mortgage all that time.

An application under TLATA is often combined with an application under Schedule 1 of the Children's Act 1989 which allows a the court to order that the parent with care of the children can stay in the former family home until the youngest child reaches 18, at which point the property is sold. Your case is more complex because your husband – not being a parent – is a joint owner. Another reason definitely to get a barrister's opinion on the situation.

But as going to court is stressful, time consuming and expensive, negotiating a settlement is by far the preferable option, if it can be achieved.

They can negotiate either between themselves with the ex, or via solicitors' correspondence or via mediation. The court anyway will expect the parties to have attempted mediation. Here's where to find a local family mediation service:

I'm afraid this answer turned out to be a bit longer than I'd anticipated, and I haven't been able to give you a definitive answer due to the complexity of your situation – but I hope food for thought anyway.

I hope this helps 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
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