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My Wife has sadly been in a Care Home suffering from increasing Alzheimer's for some years. We have a pre-nuptial Agreement under which she undertakes to make repayment to me of a stated per annum amount in reimbursement of my undertaking to pay all her living costs (to the detriment of my Inheritors) - repayment to be made from the proceeds of the sale of either of her properties Her Affairs are handled by a COP appointed Deputy who, inter alia, is handling a Divorce Settlement regarding a previous husband she divorced some six years ago! Because I am 72 I am concerned that this matter will still be outstanding after my death. I have lodged a suitable letter of Claim with her (Chartered Accountant) Deputy and have asked, in the circumstances, that they voluntarily accept, on her behalf, a corresponding charge against a stated property. They have not replied and have ignored my requests to acknowledge receipt of my Claim and associated letter. Is there any way I can get a Court Charging Order against a property in these circumstances, please (Clearly I do not want to get in legal wrangles/COP applications etc) Thank you - Mike P
I perhaps should have mentioned that the obligation for payment is contingent upon Divorce or Separation - we have sadly been 'separated' since she 'voluntarily' entered the home and she has not agreed to see me for some years....(and will never be able to return home) which I construe as 'Separation'
Married on the 18th February 2009 in England.
I would not want you to think that I am being avaricious
If I might explain my Wife had to enter full time care some three years was then, and is now substantially more mentally incapacitated such that from the outset did not know who I am and becomes disturbed when asked if I can visit her.
At the advice of her Carers I no longer ask to see her out of recognition of this
The Agreement states
£ 80,000 as a maximum) from any income from the sale of her property should it or a lesser sum be requested of her by Michael Piesse.
My requirement for a charge relates to my age (I may well die before my Wife) and to ensure that the money is available as intended - for my inheritors
This I why I have made the Claim now, whilst I am alive - to be actioned (via a charge) only on the sale of my Wife's property (likely through the six-year ongoing Divorce settlement with her previous Husband!
Re legal advice - No, but the Agreement concludes with
"Both Parties agree that they have had full opportunity to seek all advice they have considered appropriate on the contents of this Agreement and that they freely and willingly enter into this Agreement"
With regard to all income and disbursements this is handled entirely by her COP appointed Deputy (A firm of Chartered Accountants and, I believe, selected from the COP's panel of possible Deputies
1. My reply of NO re legal advice should, on consideration, have been 'I do not know - I was simply not advised"
Given "Both Parties agree that they have had full opportunity to seek all advice they have considered appropriate on the contents of this Agreement" I canot therefore say if she sought legal advice or not (and sadly she would not be able to now provide a suitable advice)
2. By the time she signed the document she had already been divorced twice and had by that time reason to fully understand the consequence of not seeking suitable advice - and she was a worldly-wise and sensible woman
3. Sadly, she is not now competent to respond to an Application for Divorce, sign a replacement agreement nor to (retrospectively) seek legal guidance.
(Nor do I want to Divorce my 'disadvantaged' Wife)
so the document counts for naught?
Would it have been valid if it was just an "Agreement", please ??
Given ""Both Parties agree that they have had full opportunity to seek all advice they have considered appropriate on the contents of this Agreement and that they freely and willingly enter into this Agreement"
How can it be irrefutably determined that my Wife did not seek legal advice - she certainly would not be able to understand the question now - let alone answer it
I know the law changed (post 2012?) does it now actually require some form of specific attestation/certification (if so, where is this stated, please?)
"There has been separate legal advice taken by each party (not just an opportunity to take advice)"
whilst I accept this, where precisely is it stated quite how this has to be demonstrated please?
(and then go to bed!)