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Harris
Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2851
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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Been married years, in between that been separated for

Resolved Question:

been married for 5 years, in between that been separated for more then 2 years. going through divorce, which ex being difficult. I have been renting with family when we were together. ex has moved out already 1 year ago. I am also buying a property which deposit has been gifted. can ex claim this property?
Submitted: 2 years ago.
Category: Family Law
Expert:  Harris replied 2 years ago.
Hi, thanks for your question. I am a qualified family law solicitor.
As you are still married and will you be the main carer. Also, is the new property going to be your main home and do you have care of any children?
As part of a financial settlement all assets will need to be disclosed and will need to be considered as part of the settlement - so it may be the case that your husband may claim for a share of this property. However, you will have a strong argument for this not to be considered given that the deposit is a gift and your husband has not contributed to it.
As part of full and frank disclosure during negotiations, or if it comes to it court proceedings. You must be disclosing all assets, as will your husband, as if it is found that you concealed assets any agreement/court order can be overturned.
As part of any agreement or court order, the court will be considering the following, which will assist you in preventing a claim against the new property:
1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
2. Any award made by the court concerning income, earning capacity, and property must rest on factual circumstances. But you must take note that in practice, courts no longer issue such order except for compelling reasons.
3.The financial needs, obligations and responsibilities where each of the parties to the marriage has or is likely to have in the foreseeable future; both parties at this point have varying needs. The court must now balance the competing needs of both parties.
4.The standard of living enjoyed by the family before the breakdown of the marriage;
5.The age of each party to the marriage and the duration of the marriage; Usually, the court will adopt the view that there should be clean break between the parties. This would be easy if both parties earn their own living. Furthermore, a longer marriage is perceived to be more difficult because the divorce court would have to deal with strict property rights. On the other hand, for a young couple, it may be appropriate to transfer the matrimonial home into the sole name of the main carer of the children.
6.Any physical or mental disability of either of the parties to the marriage; in actual practice, this is not much regarded because having a mental or physical disability would lower your earning capacity and perceived future needs. In taking this factor into account, individual and personal circumstances of each party must be considered.
7.The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family; this simply means that contributions made the wife, by doing domestic work, can be taken into account in the same way that the husband’s financial contribution is given leverage by the court.
Please let me know if you have any further questions regarding this.
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