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ukfamilysolicitor
ukfamilysolicitor, Family Solicitor
Category: Family Law
Satisfied Customers: 1097
Experience:  Divorce, Finances, Children, Domestic Violence, Care Proceedings
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I am on the verge of splitting up from my wife and last year

Resolved Question:

I am on the verge of splitting up from my wife and last year I placed £25,000 towards her fathers home to buy from the council, I had trusted my partner and did not get anything in writing as the trust was there to buy the house. know that we are splitting up she has told me that I have no entitlement back from her dads house and that the £25000 was a gift to her father and I am having nothing has I don't have anything in writing
Submitted: 2 years ago.
Category: Family Law
Expert:  ukfamilysolicitor replied 2 years ago.
Hello
Thank you for your question. I am a Solicitor and will try to assist you.
Please can you confirm to me what your perception of this situation was.
1) was it a gift or a loan?
2) if it was a loan when did you expect to be repaid?
I look forward to hearing from you.
Kind Regards
Caroline
Customer: replied 2 years ago.

Hi Caroline

The payment to her father was a cash lump sum paid through our bank to her fathers bank.

We got the £25000. added on to our house which increased our Mortgage years and payments.

The payment was then used by her father to buy his council house from the council.

The payment was not a loan and I would also say also not a gift, as the payment was made to purchase her fathers council property through his name.

there was no signed agreement from me or my wife on the payment to buy her fathers house, just the payment through the bank.

in her fathers will and testimony upon her fathers death her fathers house would then go to my wife and her brother has the brother had done the same as me and our wife gave her dad £25.000

The payment from me and my wife was defiantly a payment to purchase the property for her father, but with no agreement at all or anything in writing, other than a £25000 payment through the bank to her fathers bank, then straight after her father brought the council property as we all agreed

As previous we are on the verge of splitting up and my wife is know saying the payment of £25000 to her father was a gift and it was nothing to do with purchasing her fathers house. which is untrue but the worrying thing for me is that I do not have anything in writing or any agreements on the transfer of £25,000 to her father other than maybe a Bacs Transfer payment and the upping of the mortgage payments and the extension of years

As we are on the verge of splitting up I have asked my wife for £12,500 back from her has my share of upping our mortgage years and payments, as her fathers house will be nothing to do with me upon splitting up.

Thank you

Mick

Expert:  ukfamilysolicitor replied 2 years ago.
Hello Mick
Thank you for your response.
£25k is a large sum of money. If it was given as a loan you could look to recover the monies by making a claim to court if it was a gift then you could not.
I note that there is no copy of your agreement in writing - this is not always required.
I note that you are confused as to whether or not the monies were a gift or a loan. You have described that the monies would be repaid but not until after your father in law passes and then the sale proceeds would then be split between your wife and her brother. You benefitting by virtue of being married to your wife.
I note that to finance the monies you had to obtain a secured loan which has now increased the value and length of your mortgage.
From your description I understand that your position is - there was no written agreement as it was a family member, it was however intended to be repaid from the estate, therefore not being a gift. This would go to your wife and because we are married - also to you. Probably repaying the extra money you had taken out on the mortgage. The amount was too large to be a gift - you are paying this back and therefore didn't have the money to gift.
Technically to enforce an agreement the person has to have breached the terms. As your father in law is still alive he hasn't breached but there has been a change in circumstance in that you are separating from you wife. You are therefore asking the court to recognise it was a loan to be paid on his passing and therefore perhaps for a charge on his property in your favour. You would have to convince a court that it was more probable then not it was a loan. The fact that it is a large amount and you had to borrow this yourself works in your favour.
Please note as there is no recorded agreement between you - if he does pass then it's likely his estate will not include it as a debt.
In relation to you wife and yourself separating - the correct process for dealing with the matrimonial finances and division is to go through a process known as full and frank financial disclosure. Yourself and your husband would need to exchange full details of all assets ( including pensions) and liabilities before negotiations take place in relation to settlement.
The normal rule for division is 50/50 however the matrimonial causes act sets out factors which could lead to a departure from this rule. A few examples are the likely earning capacity of both of you for the future, health needs etc. The length of the marriage and the future care of any children would also be considered.
Consideration would need to be given to making a referral to a mediation service. They can assist in relation to the process of disclosure and also in relation to negotiations about division.
If agreement could not be reached then an application would need to be made to the court. You can not make an application to the court until you have at least attempted mediation first.
It would be important that no division took place until a court order had been obtained. If division is agreed without the need to apply to court then you should submit a consent order for Judicial approval prior to division and obtaining decree absolute. Not doing so could leave you open for a future claim.
Kind Regards
Caroline
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Expert:  ukfamilysolicitor replied 2 years ago.
I would be grateful if you could kindly rate my answer.