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Stuart J
Stuart J, Solicitor
Category: Family Law
Satisfied Customers: 26475
Experience:  Senior Partner at Berkson Wallace
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I am seperating from my partner. We have been together for

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I am seperating from my partner. We have been together for 18 years and have a 15 year old son, although not married.
JA: What are the assets involved here? Are there any minor children?
Customer: Our property is joint owned, both names on the mortgage. Do you have any literature that I can read for guidance regarding what I would be entitled to please?
JA: Were any marital funds used for the mortgage or property improvements?
Customer: He input £60,000 initially, that was written into our conditions so that he would automatically get that back. The house is worth £250,000 - £280,000
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: That he's already engaged a solicitor and the offer put to me seems inadequate.

Hello. Thank you for the question. It is my pleasure to assist your with this today.
I have been in the legal profession, in high street practice, for 30 years so I have wide range of experience in a great many different aspects of law.
Please bear with me and I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

Customer: replied 14 days ago.
our son is 15, 16 in August. Just the property. We have seperate bank accounts. I know that he has Savings also, approx £15k and also a payment from the sale of the business of £60,000, another £30,000 due imminently.

Do you also contributed towards the mortgage?

anything towards the upkeep of the property?

Customer: replied 14 days ago.
He pays the mortgage from his account and utilities, I pay for groceries, TV and internet, mortgage insurance, everything to do with our son, I also have a 19 year old that only works 10 hours a week that I also support from a different relationship. All clothes, private day nursery (when applicable) and afterschool fees/holiday clubs.
I have bought various pieces of furniture and clean the house, I do all the cooking.
Customer: replied 14 days ago.
If that counts for anything. To complicate things I also work for him. Initially he was the Director of the business and has sold to a large leasing company.
I have worked here for 18 years and have been one of the better earners for the business, there are 2 other sales people so I've bought in a good percentage of the company business. Is that relevant?

It doesn’t matter what each person puts in by way of deposit and what each person puts in over the period of ownership, it is split 50-50. It does not matter that one of them pays all the mortgage and puts all the deposit in and the other one sits by and does nothing but drink tea, it is split 50-50.

UNLESS there is an agreement to the contrary. Usually a trust deed.

The courts have decided that if a couple are buying a property together they would have an agreement if they were putting different amounts of money in and wanted money out in proportion. They would safeguard their “asset” by putting it in writing.

Relevant case law is Kernott v Jones.

The case does go on to say that if the couple were living in the property and one party moves out, then any contributions to the capital or fabric or improvements of the property, after that person moved out but which were made by the one remaining, will be taken into account with the final division of assets from a sale of the property. That actually happened in Jones because the property was sold years later and Jones I done a whole load of work to the property which increased that person share.

This it seems that the decision is unfair but for now we are stuck with it.

And there is another case

The case law goes on to say is that any contributions to capital (not interest) and any maintenance or payment towards the property other than the mortgage, after a couple split up will be taken into account in the division of the assets. The reason it all isn’t taken into account is that if you have the benefit of living in the property then you have the burden of paying the mortgage.

Not relative to the case law but if either party wants the property sold, then the reluctant non-sale wishing party can be taken to court for an order for sale under the Trusts of Land Appointment of Trustees Act s14 and they would usually get the order against the reluctant seller and get caught and solicitors costs also awarded against the reluctant seller. If anyone ever threatens to apply to court for an order for sale, my advice to the other party is to get the estate agents sign up straightaway.

Meanwhile, a person is not responsible for the mortgage or the bills of a house that they do not live in although they remain liable to the lender if the other co-owner stays in the property but doesn’t pay.

That would be the situation if you have no children but you have a 15 year old son.

You have to remember that if you have dependent children, under 18, the situation can be completely different.

Parents are under a duty to provide a home for dependent children until they reach 18 and therefore, unless there is a lot of equity in the property, sufficient to release some money to the non-resident parent AND provide a home for the resident parent aAND the children until the youngest reaches 18, it’s unlikely that the non-resident parent is going to be able to force a sale of the property.

The only good news is that the party that remains in the property is responsible for the mortgage and the bills.

The situation would be completely different if there were no children and it would be infinitely possible for the person wishing to sell to force a sale of the property if necessary under section 14 of the Trusts of Land Appointment of Trustees Act by applying for an “order for sale”.

Dependent children, under 18, change all that. However in those circumstances the resident parent would be responsible for the mortgage and the bills not the non-resident parent although there is still the possibility of child maintenance and spousal maintenance.

If the parent with residence of the children cannot afford doesn't want to live in the property because, for example, it's too big, they can always sell it and asked the court to apply the proceeds to a new house to provide a home for the children until they reach 18. Only then would it be sold.

So you could probably hold onto the house until your son reaches 18 and then it would be split 50-50.

If there is a deed of trust which says he gets the GBP60,000 back first, then he gets that and everything else is split 50-50. But that still subject to you having the house if you are going to be the main carer of the child until the child reaches 18.

A person is not responsible for the mortgage or rent or the bills of a house that they do not live in although they remain liable to the lender or landlord if the other person stays in the property and doesn’t pay the mortgage or rent.

In that case, the non-occupier would be entitled to recover any mortgage or rental payments made by the non-occupier, from the occupier within the finances of the breakup of the relationship/marriage.

If you can tell me the offer he is put to you, I can probably comment on that.

Thank you for letting me assist you with your legal question. I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards


Customer: replied 14 days ago.
Thanks for your prompt attention Stuart. We do have the deed of trust. The remaining mortgage is £80.000.
He offered £30,000 and £500 for Harry until he’s 18 as long as he stays in full time education.

A non-resident parent is obliged to pay child maintenance at the CMS rates which are here

Do read the whole document but the basic rates start at the top of page 18.

Child maintenance is reduced by 1/7th for each 52 nights that the non-resident parent has the children.

If the children live 50-50 with both parents, then no child maintenance is payable. Considering there may be a disparity in incomes, that seems rather odd but that’s the rule.

If the paying parent pays for other things such as clothes, toys, school trips, food, whatever, then it’s not classed as maintenance. They are voluntary payments. They do not get taken into account.

Child maintenance has to be money paid by the paying parent to the resident parent.

It doesn’t matter how much the receiving parent earns or what assets they have and it doesn’t matter what assets the paying parent has, child maintenance payments are based upon income of the paying parent.

Let’s look at the house being worth the bottom end of value GBP250,000 less his GBP60,000 leaves 190,000.

Let’s the mortgage of 80,000 leaves equity of 110,000.

Split that two ways is GBP55,000 each.

And that’s what you want less contribution to solicitors costs perhaps.

Oh, I forgot, and you want to stay in the house until Harry is 18 but you would pay the mortgage in the interim.

You have no financial interest in anything else. Business shares, savings, assets, nothing UNLESS it’s in joint names.

Can I help you any further with this?

It's my pleasure to help. I’m glad that I was able to help so far.

Thank you for trusting Just Answer with your legal problem.

I'm happy to clarify anything which is outstanding.

Please don't hesitate to ask.

Kind regards


Customer: replied 14 days ago.
It’s me that’s leaving the house I’ve secured a rental property.
He has had a payment of £60k which he told me he was paying off the mortgage but didn’t, it’s sat in his bank account.

Thank you. But if you wanted to live in the house, you could so you’re giving him something that he would not otherwise be entitled to.

You have no interest in the GBP60,000. Was sorry. If you paid it off the mortgage, you would be entitled to 50% but I gather he taken some advice and hence didn’t. Shame.

Customer: replied 14 days ago.
I appreciate your help, thank you

I am glad to help.

If you don’t have any further questions, I will mark this question thread as complete but don’t worry, the thread stays open if anything else crops up over the course of the next days weeks or months.

I’m glad that I was able to help.

Thank you for trusting Just Answer with your legal problem.

Kind regards


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