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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 17544
Experience:  I have been practising for 30 years.
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My partner’s ex partner is making a settlement for him. At

Customer Question

My partner’s ex partner is making a settlement for him. At the time of sending solicitors papers via email her solicitor also forwarded via her office an agreement for him to sign relinquishing interest in the property they had both resided in. He is reluctant to do this obviously feeling he’s being blackmailed in a way. What is the best way forward currently?
JA: What steps has your partner's ex partner taken? Have they filed any papers in family court?
Customer: No.
JA: Family Court normally sits in a local County and Magistrates' Court. Do you know the location of the court? If not, what county does your partner's ex partner live in?
Customer: neither are wanting court settlement currently.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: NoI don’t think so.
Submitted: 14 days ago.
Category: Law
Expert:  F E Smith replied 14 days ago.

Welcome to Just Answer.

I will be happy to assist with your question today. I need some time to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

for background -

how long were they together and married in total?

any children? where do they live and who is main carer?

and is his name on mortgage?

and why does the ex want him to relinquish the property?

Expert:  F E Smith replied 14 days ago.

Let me answer you as far as I am able. I don’t know whether they are married and as you say partner rather than life I am going to assume they are not.

I don’t know whether they own the property jointly which they both reside in but if they do, this is the situation:

If 2 people own a property are not married and there are no children and there is no agreement to the contrary as to what will happen when the property gets sold, then it is split 50-50. 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 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.

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.

I will say that I don’t agree with this decision but I don’t make the law, I just regurgitate it. 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.

What 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.

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

I would be more than happy to clarify anything else for you. In the meantime, thank you once again for using our services.

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

Please be aware that my answer is based strictly upon the information you have given me.

If you still need any points clarifying, I will be happy to reply because the thread does not close. In fact, it remains open indefinitely.

I am always happy to answer any further questions you have on any new thread in which case, please start your question with, “ For FES only”.

That only applies to new threads, not this one. You have me exclusively on this one.

Thank you.

Best wishes.

FES