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Ask Clare Your Own Question
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34233
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 have been divorced 2 years. My ex-husband

Customer Question

Hi, I have been divorced for nearly 2 years. My ex-husband and I own the marital home in joint ownership and would like to leave it that way as we remain in amicable terms and there is no mortgage. I occupy the house with my children. My main concern is to protect my share of the house in the event that : - my ex remarries and subsequently dies, leaving his share to his new wife who could request a sale of the house - He goes into debts and requests his share to sell the house. I am aware that I can stay until my younger is 18 or 21 if in further education (he is 15 now). What are my options? Is it advisable to sever the tenancy and enter a declaration of trust while making wills? Should I ask to transfer the title of the property in my sole name? Thanks for your advice, Emmanuelle

PS: We have tried going the route of adding a legal charge to the final consent order (title to be transferred in my sole name, in case of future sale of the house, proceeds to be split 50% for me, 30% for my ex-husband, 20% for the 4 children) but my ex-husband's solicitor is really unhelpful and creating more problems. So we are keen to explore alternative ways in order to remain amicable.

Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
How much is the property worth and how much is outstanding on the mortgage; what other assets are there and what income do you each have?
Clare
Customer: replied 2 years ago.

No mortgage. Property worth about £600k. No other assets. My ex - husband bought a flat and has a £70k mortgage. I gave him a £20k deposit. He earns £2,400 net per month. Including his maintenance paiement and children tax credits I get about £2,800/month. I cannot afford to buy him out and we agree to jointly own the house so I can stay there with the children (14, 16, 19, 20). I pay all expenses for the house and children and have them all the time, even holidays. None of us wish to sell the house which we eventually want to pass onto the children. Hope this is helpful. Thank you for your advice.

Expert:  Clare replied 2 years ago.
Hi
Did his solicitor raise concerns about the 20% to the children?
Clare
Customer: replied 2 years ago.

No. The legal charge was my idea to keep my ex husband a share of the property and to make sure the children would end up with some of the proceeds for themselves. She raised concerns that this financial agreement between us, added to the amount of monthly maintenance (£500) was not in favour of my ex. But she didn't suggest any alternative. We approached this solicitor as my ex husband needed someone to draft this charge on his behalf. The initial correspondence and the instruction's agreement he has been asked to sign is peppered with mistakes and contradictions, which made me doubt of the competence of this solicitor. This is why at this point we are both reconsidering whether this is wise to continue with this legal charge or if we can find an easier way without going to court. I hope this makes sense.

Expert:  Clare replied 2 years ago.
Hi
His solicitor has a point.
Just so that I am clear - are you hoping to remain in the property for ever as it were
Clare
Customer: replied 2 years ago.

At the moment, yes. Neither of us wish to sell the property. If the legal charge is not the right way to go, we are both happy to leave the property as it is, in co-ownership as joint tenants and I have no problem with him inheriting my share. I only want to make sure I can stay and will not be forced to sell.

Expert:  Clare replied 2 years ago.
Hi
Would you be happy for there to be a charge simply in your ex's favour - forgetting the children part?
Clare
Customer: replied 2 years ago.

Hi, We are actually discussing this right now together. We are exploring the possibility to keep it more simple, by severing the joint tenancy and become tenants in common in order to make wills to specify that our share of the property ownership passes directly to the children and not a new partner if any. Would that be a good solution? We are both happy to remain in co-ownership of the house.

Expert:  Clare replied 2 years ago.
Hi
That is certainly a good option BUT of course either of you would be free to make a new Will - and it would not protect you if your ex goes bankrupt.
The two other options are
1. The property is transferred into your sole name and there is a Declaration of Trust which states then on your death or the earlier sale of the house the equity is split 50/50 between you (or 60/40 if appropriate
or 2.
The property is transferred into your sole name and there is a legal charge to your ex alone for 4o% or 50% of the equity payable on the same terms
This is less complicated than two charges!
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 2 years ago.

Do you mean that mentioning the children's share will result in an additional legal charge? one regarding my ex and one benefiting the children? It sounds easier to do a declaration of trust but we've always shared our income so I won't be able to specify exactly how much each of us has paid towards the purchase/mortgage. Is it less complicated to do a declaration of trust that a legal charge (with respect of solicitor's time & amount of work...)?

Thanks for your advice.

Expert:  Clare replied 2 years ago.
Hi
Yes - if you go the charge route then there would have to be two separate ones if you wish to benefit the children.
The Declaration of Trust does not require you to know how much you each paid - just how you want the equity divided
It is indeed a less complicated option
Clare
Customer: replied 2 years ago.

Regarding the consent order which has not yet been finalised, I imagine it will have to refer to the declaration of trust, instead of the legal charge then.

Expert:  Clare replied 2 years ago.
Hi
Yes that would be necessary
Clare
Clare and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.

Thank you very much for your time. I tried to rate your answer but I got the message "access denied".

Expert:  Clare replied 2 years ago.
Hi
No worries - you have rated it and all is well - thank you I hope all goes well
Clare