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ukfamilysolicitor
ukfamilysolicitor, Family Solicitor
Category: Family Law
Satisfied Customers: 1494
Experience:  Divorce, Finances, Children, Domestic Violence, Care Proceedings
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My daughter has a partner who has moved in with her into her

Customer Question

My daughter has a partner who has moved in with her into her flat. He has started to pay rent (ie share the costs of the mortgage) and they will likely get married next year. She has had the flat for 6 years (in London) and has thus built up substantial equity. She wants an agreement (sort of pre-nup) to protect her equity build up to the moment he moved in (she remortgaged about that time so she has a relevant property valuation), should they split up at some time in the future. What are the options, & best option for her? Thanks
Submitted: 5 months ago.
Category: Family Law
Expert:  ukfamilysolicitor replied 5 months ago.

Hello

Welcome to Just Answer

I am a Solicitor and will assist you.

Please may I ask:

- how much equity is in the house?

- when is the wedding planned for?

- any other assets for both of them including pensions?

kind regards

Caroline

Customer: replied 5 months ago.
Mortgage about £250k, flat worth about £550k so c£300k equity.
No plans for wedding yet (will happen later) and my daughter has just found out she’s pregnant, so we’re even more keen the equity is protected.
Assume no other material assets.
Thanks
Expert:  ukfamilysolicitor replied 5 months ago.

Hello

Thank you for your response.

Please accept my apologies for not being able to respond to you sooner.

What you need to know is that as an unmarried couple then he can only make a claim in relation to the property under the Trust of Land Act,

To make such a claim he would need to do any of the following:

1) pay a deposit, or

2) pay the mortgage, or

3) add value through renovation.

I note that you have stated that he is paying towards the mortgage. If they split up and remain unmarried then he could try and make a claim under the Trust of Land Act for a declaration as to his interest in the property. This will be limited to the amount he has paid less the benefit he has had from residing there so this may not be very much if they were only together a short time.

At this point they may want to consider a cohabitation agreement setting out the position in relation to the equity and the position moving forward. A local solicitor can prepare such an agreement for circa £300.

If marriage happens in the future then they were to later divorce then the house along with all other assets for both of them would be considered as matrimonial assets no matter whose name they are in. If it was a long marriage then the starting point for the division of assets would be equality.

In reality, if the child/ren were still minors and there was not enough equity to rehouse the children and downsize then a court would likely order that the house not be sold and his share realised until the child/ren are no longer minors.

Your daughter could also argue that the house was a premarital asset. There are no set rules in this regard and the court has a wide discretion. Basically a court can set aside a premarital asset if there was sufficient other assets to meet needs but if there was not then a court could choose not too.

The other option before a marriage is a pre nuptial agreement.

You need to know that such agreements are not legally binding on any future family court Judge that may be deciding the issue of the matrimonial finances pursuant to an application for divorce.

That being said, Judges can and will follow was what previously agreed in such an agreement if the following are met:

- there was full and frank disclosure of all the assets and liabilities

- each party had independent legal advice and entered the agreement freely

- the Judge thought the agreement was fair.

The last ground is somewhat ambiguous but this is going to depend on the circumstances at the time, such as say for example if one of the parties was ill or say if the marriage was a really long one.

I hope that this helps you. If I can assist you further then please do not hesitate to ask

kind regards

Caroline

Please kindly remember to rate positively by clicking on the stars so that credit is received for helping you today

Expert:  ukfamilysolicitor replied 5 months ago.
Hello I note that this question remains unrated. Your feedback is important to me and I would be grateful if you could kindly rate my help by using the stars. If I can assist you any further then please do not hesitate to ask. kind regards Caroline