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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11757
Experience:  30 years as a practising solicitor.
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I have been separated for three and a half years but cannot

Customer Question

I have been separated for three and a half years but cannot agree a financial settlement with my ex-husband. The marital home is in my name only, and was valued back in 2010 when we separated, for the purpose of financial settlement.

If I were to put the marital home into a trust for my children (rather than selling it), would my ex-husband still be able to take me to court to claim a share of its value, and force a sale of the house? My children are all over 20 years old now.
Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.When did you marry? When was the house bought? When did you separate? Why was the house bought in your name?
Customer: replied 3 years ago.

Thanks for your response. The marriage date was 05/04/1993.


The present house was bought in August 2002.


The house was bought in my name as I produced the money for it, and my husband was experiencing financial problems and was in voluntary liquidation (bankrupt) at the time.

Expert:  JGM replied 3 years ago.
Sorry for the delay in replying. I've been in court all day.

Although the house is in your name, it is still matrimonial property and your husband is entitled to his share. Even if you put the property in trust for the children he would still be able to seek the value of his share from you. In any event without a renunciation of occupancy rights from your husband it is unlikely that you could pass a good title to the trust.

Your husband will argue that the house was acquired during e course of the marriage as a family home and that as such, as a matter of family law, it falls to be shared between you in accordance with the 1985 Act.

He could force a sale of the house if agreement as to the amount of a buy out can't be reached.

Happy to discuss further.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 3 years ago.

He moved out of the house in December 2010, so does he really still have occupancy rights?

Expert:  JGM replied 3 years ago.
If he hasn't stayed there at all since then the right of occupancy will have prescribed but not his right to a share.
Customer: replied 3 years ago.

Thank you JGM. He has not occupied the house at all since December 2010 so presumably there is no object to putting the house into a trust.

Expert:  JGM replied 3 years ago.
You can do that as long as you're in a position to settle with him financially. He is entitled to a fair share of matrimonial assets as at the date of separation.

Always happy to discuss.
Customer: replied 3 years ago.

If I were to put the house into a trust for my children, I would not have any capital assets left. So if he were to get a court order for a capital sum, as far as I can see, my only option would be to declare myself bankrupt.

Expert:  JGM replied 3 years ago.
You can't do that.

Your trustee in bankruptcy could apply to the court to reduce the transaction involving the transfer of the house from your name into the name of the trust.

It would be treated as an illegal transaction designed to avoid your liabilities and the court would have no hesitation in undoing the transaction.