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ukfamilysolicitor
ukfamilysolicitor, Family Solicitor
Category: Family Law
Satisfied Customers: 1436
Experience:  Divorce, Finances, Children, Domestic Violence, Care Proceedings
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My brother and my Mum jointly own our family home (unsure

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Hello.
My brother and my Mum jointly own our family home (unsure what type of joint ownership it is). There is £150k still outstanding on the mortgage which is also in both of their names. My Mum has been making ALL payments through her bank account.My brother is potentially separating from his wife. She is not named on the deeds or mortgage. What rights does she have over the home if they divorce please? Can she force the value of the home to be split between Mum & brother and then take half of his share even though he is only on the deeds & mortgage in name rather than an actual, active payee of the debt? Do my other brother, my wife and I have any rights in this situation?It is home to Mum, my younger brother, myself & my pregnant wife as well as the aforementioned brother, his wife and 2 young children.Please help! Thank you.

Hello

Welcome to Just Answer

I am a Solicitor and will assist you.

What you need to know is that as a married spouse, your brothers wife is able to make a claim in relation to the matrimonial finances should they divorce.

The matrimonial finances includes all of the assets and liabilities for both of them and it does not matter that the asset that your brother shares with your mother is in his sole name and not his wife's name. This is still considered a matrimonial asset.

I appreciate that this what you want to hear but I do have to be honest with you.

If they have been together (including the length of their marriage and previously co-habitation) for over 10 years then the starting point for the division of the asset is going to be equality (In relation to your brothers share). If she is going to be the main carer for the children then she could argue a larger share of your brothers share - around 10% more.

It is important that it is established how your brother holds the property with your mother so as to establish what his share is.

Any other person can claim an interest in the property (in relation to the other relatives you have mentioned) under the Trust of Land Act if they have 1) paid a deposit, or 2) paid the mortgage, or 3) added value through renovation.

Going back to the situation with your brother - your situation is rather unusual given the other relatives living at the property and just because his wife is going to have a share of her husbands share does not mean that a court will agree that the house be sold so that this can be achieved now. That is going to depend on how much equity is in the house and if housing needs can be met elsewhere (especially for the children) by downsizing.

If your brother has any other assets then perhaps he could offset these by giving his wife a larger share to retain in the house.

Your brother needs to consider family mediation. This is actually a prerequisite before an application can be made to court by either spouse for an order in relation to the matrimonial finances.

Mediation is independent and will try and help them reach agreement without the need for court. If agreement can be reached at mediation then this can be prepared into a consent order and submitted to the court for approval when applying for decree absolute in divorce proceedings. If approved this becomes legally binding and would prevent any future claims being made.

Kind regards

Caroline

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Customer: replied 1 month ago.
Thank you for the reply.We were of the thought that we borrow money to pay off the mortgage and then revert the house to my Mum's sole ownership arguing that since my Mum has made all payments, he has no right to lay claim to the house. We would legally remove his name from the deeds because the house originally belonged to both my parents and after my father sadly passed away my brother's name was only added because he is the eldest son and we needed to raise the £150k in an emergency.In essence, it isn't really HIS house! It's my Mum's and she wants to share the value of the house equally between the 4 parties:
1. herself;
2. myself;
3. my older brother;
4. my younger brother.This is not a manufactured scenario to avoid my sister-in-law being left out. It reflects the reality of how the house was intended to be shared.We have already had someone of her relatives calling the house to enquire as to the ownership! This is what alerted us to the possibility of what she was being advised. We need to protect ourselves against an unfair split should she decide to leave.I have already asked you a question tonight about her recent repeated threats to leave the home with the children. She has been caught repeatedly calling an unknown man in Dubai who has promised to take her in because of her supposed unhappy marriage. When confronted, she admitted her online & on-phone relationship, blaming my brother for neglecting her and making her unhappy. She didn't even deny it to our family!As you can see, we need to protect ourselves.Thank you again.

Hello

Thank you for you response.

You need to know that putting the home in your mums sole name is ***** ***** to help now. In fact it will probably only make things worse. I say this because a court might think this has been done to devoid the wife of a claim and if the court thought this then they can order more favourably to the wife.

You can all become intevenors in the matrimonial financial proceedings between your brother and his wife and give evidence about the ownership of the house and how this should be for all of you. The court will decide on the balance of probabilities (49/51) who is more believable.

I didn't realise the questions were linked - sorry! but yes it seems as through the mother is going to try and get as much as she can.

Its better to leave the house in the names it is but become party to the matrimonial finances proceedings (especially your mum) to provide evidence to the court as the real ownership of the property.

kindest regards

Caroline