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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33306
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My Wife has sadly been in a Care Home suffering from

Customer Question

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'

Submitted: 1 year ago.
Category: Law
Expert:  Clare replied 1 year 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.
When and where were you married?
Clare
Customer: replied 1 year ago.

Hi Chris,

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



  1. In view of where they are in their lives and the lack of cash liquidity and expected income of Caryll Charman both Parties accept that Michael Piesse agrees to ensure payment of all of their joint living expenses.



  1. In recognition of the negative consequence of such payments to the amount available to his inheritors Caryll Charman agrees that she will reimburse half of all such expenses (in an amount determined for these purposes of £ 7,500 per annum and as


£ 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!

Thank you

Expert:  Clare replied 1 year ago.
Hi
Did your wife have separate legal advice prior to signing the agreement and who currently pays the fees for her care?
Clare
Customer: replied 1 year ago.

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

Expert:  Clare replied 1 year ago.
Hi
So - for clarity - you are no longer in any way financially responsible for her?
Clare
Customer: replied 1 year ago.

Correct

Expert:  Clare replied 1 year ago.
Hi
I am sorry but there is no basis on which you can obtain a Charge on her property - unless you start divorce proceedings and seek a financial settlement.
In addition I am afraid that the agreement that was signed fails the most basic of requirements for being a binding pre nuptial agreement - she did not receive independent legal advice.
Sadly your only option is to issue divorce proceedings and make an applictaion within those for a capital settlement
Please ask if you need further details
Clare
Customer: replied 1 year ago.

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?

Expert:  Clare replied 1 year ago.
Hi
i am sorry but it simply is not an enforceable contract other than potentially within the financial side of divorce proceedings
If there were divorce proceedings (and since she has an appointed Deputy there could be) then you could try and argue that it is a binding pre-nuptial agreement - but frankly the lack of legal input makes it a forlorn hope.
Clare
Customer: replied 1 year ago.

Would it have been valid if it was just an "Agreement", please ??

Expert:  Clare replied 1 year ago.
Hi
No it would not have been enforceable
Clare
Customer: replied 1 year ago.

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?)

Expert:  Clare replied 1 year ago.
Hi
The law has not changed at all.
Pre- Nuptial agreements are not guaranteed to be enforceable in England and Wales
However recent case law has established that the in certain circumstances they may be abided by by the family court
that is
1. There has been separate legal advice taken by each party (not just an opportunity to take advice)
2. It is signed at least 28 days prior to the wedding
3. There has been full and frank disclosure of all assets
The word is still MAY not will.
Clare
Customer: replied 1 year ago.

"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!)

Expert:  Clare replied 1 year ago.
Hi
The Case Law is here
http://www.familylawweek.co.uk/site.aspx?i=ed96700
I know that you are going to point out that it does not say that legal advice is a black and white issue - however on the practical level it is - unless of course your wife came from a country where pre nuptial agreements are normal (which I did not ask - my apologies)
However you may well have a financial claim on your ex within divorce proceedings in any event making the argument a moot one
Clare

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