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F E Smith
F E Smith, Advocate
Category: Family Law
Satisfied Customers: 12079
Experience:  I have been practising for 30 years.
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I need help with splitting up assets with respect to my

Customer Question

I need help with splitting up assets with respect to my will.
Currently I own the property myself and my husband live in due taking it over from my previous marriage and I pay the mortgage and all the family bills.
I did not put my husband on the mortgage as he is 10 years older than me and the term would have reduced significantly.
I understand that because we are married he is entitled to half of my assets? exactly as it would be if we divorced? - could you clarify what his entitlement is in divorce and on death if I die intestate?
I am making a will as i have 2 dependents from my previous marriage who live with me and my husband but I want to check what share of any assets i should put for my husband as i do not want to incorrectly reduce my children's share i.e. if my husband is already entitled to 50% legally and I then leave him 50% of my share and my children 25% each will my husband end up with 75% of the total?!
Do I own 100% of the house now or do I own 50% even though my husband is not on the mortgage?
Submitted: 9 months ago.
Category: Family Law
Expert:  F E Smith replied 9 months ago.

Hello for clarification - how long have you been married?

Customer: replied 9 months ago.
Since 2013 it will be 5 years in September this year.
Expert:  F E Smith replied 9 months ago.

If you die intestate, the rules of intestacy are quite straightforward and strictly applied.

You get all joint assets plus the first £250,000 of everything in his sole name. You then get 50% of the remainder over and above 250,000 and any children get the balance of the 50% of the remainder over 250,000.

Stepchildren get nothing unless they have been legally adopted.

Re: Divorce.

It doesn’t matter whose name the house is in if a couple are married and whether it’s in joint names or single names, the non-named owner has exactly the same financial interest in the property as they would do if they were co-owners.

In addition, if the couples split up or get divorced and the house is sold, it doesn’t matter who divorce is who or why, the court does not apportion blame when it comes to dividing the finances.

A person who does not live in a house is not responsible for the mortgage or the bills of a house they do not live in although if they are named on the mortgage, they remain liable to the lender if the other person who remains in the house doesn’t pay. Your particular case, your husband is liable within the marital finances to pay the mortgage but he is not named on the mortgage so he has no liability to the lender.

How much your husband would get in the event of divorce would come down to how long you would together before you got married, and how long you had been married, how many assets you have, what incomes you have, the value of the house, the mortgage, pensions et cetera et cetera and what each of you needs to live on after you break up.

Can I clarifying anything else for you?

I am happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.


Customer: replied 9 months ago.
from what you have said I need to leave my 50% share of the house to my 2 children so that they own 50% and my husband owns 50%?
Also my daughter is 13 and has told me she would not want to live with her dad if anything happened to me - she would want to stay with her step-dad who is in agreement. I wrote a letter years ago for my husband to keep on him (on the advice of my solicitor) stating that I delegate my parental responsibility to him in my absence. Would this suffice for my husband to have my daughter remain with him or do I need to do something more formal? Can it merely be stated in my will that this is my wish also?
Expert:  F E Smith replied 9 months ago.

Normally what would happen is that in your will, you would appoint a Testamentary Guardian to look after your minor children in the event of your death. It’s not absolutely legally binding and nor is your letter. There is no way that you can legally impose parental responsibility onto an unconnected third-party to the exclusion of a natural parent unless the natural parent agrees or there is a court order giving parental responsibility to the unconnected third-party (the stepfather).

I can’t see that the child’s natural father would want to continue to look after a child who would prefer to live with someone else

Customer: replied 9 months ago.
Hi yes it would cause a lot of heartache if my daughter were forced to go and live with her dad but unfortunately her dad is that way that he just has to win to make a point that he can. I will put my husband as the Testamentary Guardian in my will and hopefully it will never be an issue! The letter was more so that my husband could deal with medical and school issues that arose without argument and thankfully those parties were happy to let my husband make decisions in my absence.
Could i just ask you 1 more question - if my husband were to die intestate am i right in thinking my stepson would be able to apply for probate as well as myself?
Expert:  F E Smith replied 9 months ago.

I am glad to help.

You are correct, you/and or your stepson would be able to apply for letters of administration, you as his wife and your stepson as his son.

Whether you would actually need probate or not depend on whether the house was joint tenants or not at what other assets there were in your husband’s sole name. There is no need for probate in respect of joint assets.

Before you go (you can come back at any time), please don’t forget to use the rating service because that gives me credit. It doesn’t just give me a pat on the head! The thread remains open. We can still exchange emails.

Kind regards.