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 ask if you and your ex partner are or were married please and whether there are any children involved from your relationship?
Thanks. Where is your ex partner presently living? Do you pay any support for your child? Does she have sufficient resources to support herself and your child including housing requirements?
thank you. Finally, when you purchase the property did you enter into any form of formal declaration of trust or was anything else agreed as to your respective ownership in the property? If not, you mentioned that agreed when you split terms as to repayment in respect of her interest in the property. was this agreed in writing?
thanks. Do I understand that she is no longer satisfied with that agreement and wishes to claim more or that she remains happy with the agreement but that it is you that is not satisfied with it
Thanks. If your ex is a joint owner of the property and you did not enter into a declaration of trust unless you have any other evidence to show how you agreed to own the property together, 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 you can show by reference to financial evidence or written agreement that you had no intention of making a gift of any part of your deposit to your then partner.
You are both jointly and severally liable for the mortgage on the property however, for the period in which you have had sole occupation of the property, your ex-partner may be entitled to something known as occupational rent. This is effectively something the courts have invented to provide that a joint owner of the property that is not resident can be compensated for your sole occupation of the property. in practice, this is typically provided by ruling that you are responsible for the interest element of any mortgage
if you can demonstrate by reference to financial evidence that there was on the balance of probability no intention on your part in gifting a share of your deposit to her that it is possible as above to rebut the presumption of 50-50 ownership. The sorts of evidence that the courts will consider looking at are how you managed your respective finances, did you keep your accounts finances separate, whether any exchange of emails or other evidence to suggest that you had managed your affairs separately throughout your joint- ownership and so on.
You can read the case of Kernott here: http://www.bailii.org/uk/cases/UKSC/2011/53.html
Another case of Stack v Dowden is relevant too: http://www.bailii.org/uk/cases/UKHL/2007/17.html
if you cannot agree on a settlement figure between you, you have a a right to apply to the courts for an order for sale or that you buy out your ex-partner's share in the property under the Trusts of Land and Appointment of Trustees Act. the courts have the power to make a determination as to your respective shares in the property on the above basis and can make orders as to your ex-partner transferring her share to you at the price determined by the court
However all of this is subject to what follows because there are children involved. In addition to maintenance, you will need to be mindful that your ex-partner can if you cannot agree as above also apply under schedule 1 of the Childrens Act in respect of adequate maintenance for your child and a judge has discretion to make orders in respect of the property for the benefit of your child until they reach 18 years of age or finish education. this is relevant in respect of the property as a judge can consider an order that the property is made available to your children until such time as they reach 18 or finish education or some other financial order in respect of the property whereby a greater share of the equity is made available to your ex-partner. The judge's determination will depend greatly on your individual levels of income and circumstances.
A principle aim of a judge will be to secure a home for the children. Once that is achieved the focus will switch toward reasonable maintenance provision. In terms of child maintenance in general terms the highest net weekly income that the Child Support Agency can use for the purposes of a calculation is up to a maximum of £2,000.00. After this an application to the court would be required for a "top-up" under schedule 1 of the children's Act. They will look at 20% of his net income for maintenance less a discount for nights they may spend with him.
There is a useful calculator you can use to see what the CSA would likely assess as the due maintenance if you were to apply to them:
accordingly, if you cannot agree between you as to settlement figure, much will depend upon the quality of evidence you can present which demonstrates that you kept your finances separate and show that there was no intention on your part to make gifts of your deposit to her. In addition, there is the added complication of your child insofar is the possibility she may make a schedule 1 application as discussed above which can impact upon property. Accordingly, if you are unable to reach an amicable agreement as to settlement, if you decide to pursue the matter in court, it is important that you are properly represented as presentation of the above evidence and arguments is a skilled task
you may consider making an appointment to see a solicitor that specialises in TLATA and Childrens Act matters. many will offer a free initial consultation. You can find appropriate specialist solicitor locally using the following link:
is there anything above I can clarify for you?
separate accounts can be very helpful as evidence As above. I would recommend that you spend 20 minutes or so reading the above cases as you will see they are very pertinent and they will help you to understand what the courts look at in more detail
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