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History: Home UK Divorce Forum
Second Property or Non Marital Property. (11 Posts)
Started By:
10 February, 2018 08:19PM
Second Property or Non Marital Property.
John Mac - 10 February, 2018 08:19PM
Can anyone advise how the Court would look at a second Property that was purchased in my name only several years prior to getting married and me moving into the marital home.

When we married it was agreed my flat valued at £75,000 would remain and be owned by me solely and that the marital home would be valued and a joint mortgage taken out and as the property was previously in my wife’s name she would have the first £99,000 of any equity with any further equity being shared fifty fifty between us as I was paying equal percentage of the mortgage payments. A legal document and charge was also jointly signed and put on the register.

My concern is that my wife will now try and ask for the flat to be considered joint property even though she has not paid anything towards the mortgage or expenses over the last ten years.

Any advice appreciated.
Re: Second Property or Non Marital Property.
Willapp - 11 February, 2018 11:00PM
I suspect your fears are well founded. Everything I have read on divorce (I have yet to begin the formal process) tells me that *everything* that is an asset is considered part of the marital estate: pensions, property, savings, everything. There is an argument - however valid or not - that your wife's support (be it financial or emotional) may have enabled you to continue to keep the rental property when otherwise you may have been forced to sell it (for example to fund your own house purchase).

I'm not even sure your "legal document and charge" has much basis depending on the length of the marriage and what circumstances may have changed in the meantime.

Depending on how amicable things are, the best you can really do is try to negotiate a settlement yourself and aim to keep the property, but I suspect its value will still have to be counted as what "you" are taking away from the marriage, although it sounds like she may receive the lion's share of equity from the marital home so that could be enough to balance things out? If you can reach agreement yourselves then it is much cheaper, easier and more likely to get the outcome you want. If it ends up being a judge's decision then they will likely lump *all* assets into a pot and divide it based on needs first (e.g. any children, what each person needs to support themselves financially etc) and only then will it be split with any reference to what you each contributed.

Length of the relationship (including prior to marriage) is a big factor, as is age and having children.
Re: Second Property or Non Marital Property.
John Mac - 12 February, 2018 10:32PM
Thanks for your response Willapp.

Can I check do you have any legal expertise or is this just your opinion from your experience and investigations.

Re: Second Property or Non Marital Property.
HatMan - 13 February, 2018 08:50AM
This arrangement strikes me as being unfair - you have retained the entire % of you former property whereas your wife has only retained a fixed sum in her former property, leaving you to benefit from increased equity in both properties.

If I was her solicitor I would be advising her very strongly to contest this arrangement and I suspect that , in view of the longevity of the marriage, it will be seen that all assets will need to taken into account.

NB You don't mention whether there are any children from the marriage - if so that will definitely trump any a priori agreement.
Re: Second Property or Non Marital Property.
Willapp - 13 February, 2018 09:37AM
It's just my opinion based on a fairly large amount of research into my own divorce situation. As HatMan says (and I mentioned), if you have children then the court's overriding duty will be to ensure their needs are met. If that requires your property is sold or the asset split then that will almost certainly happen.

Children aside, if the relationship is of any length (let's say 5+ years for argument's sake) then the validity of any initial legal documents becomes weakened and again the courts would decide what is "fair" assuming it gets that far. If you can agree between yourselves then you have more control over the outcome, but any deal still has to be approved by a judge so it has to be seen as being reasonable.
Re: Second Property or Non Marital Property.
davidterry - 13 February, 2018 11:08AM
As Willapp says,

'Length of the relationship (including prior to marriage) is a big factor, as is age and having children.'

This is all very light on such facts.
Re: Second Property or Non Marital Property.
John Mac - 14 February, 2018 11:13AM
No dependant children we are both pensioners with adult children.
Re: Second Property or Non Marital Property.
John Mac - 14 February, 2018 11:20AM
The reason this arrangement was agreed was that my flat valued at £75000 would remain my asset and she would not pay anything towards that mortgage or repairs to the property. Her house was valued at £99000 which would remain her asset and only any future equity above that £99000 would be shared 50 50 as I would be paying half the mortgage and half any other expense connected with the property. If she had paid half the mortgage and repair bills I would agree that she should be entitled to an equal share but she chose not to do this and agreed to the arrangement. If a Court decides she should be entitled to half the flat value then they should also find that I am entitled to half the house value and not just a 50% share of the equity above the £99000. That way it would be completely fair on both parties.
Re: Second Property or Non Marital Property.
davidterry - 14 February, 2018 11:36AM
And how long has the relationship lasted (ie marriage and any prior period of cohabitation)? Although the question has been asked for some time you have not answered it and the information is vital to knowing whether what you seek is fair or not.
Re: Second Property or Non Marital Property.
John Mac - 14 February, 2018 03:32PM
Marriage lasted just under 8 years no previous cohabitation but 5 year relationship.
Re: Second Property or Non Marital Property.
davidterry - 14 February, 2018 05:43PM
On these facts a court will be most concerned about where you are each going to live and how it will be paid for. Since you obviously have a flat I don't think the net equity of the matrimonial home is likely to be divided in such a way as to prejudice your wife's reasonable housing needs. It may be that you get to keep your flat and she gets to keep the house. I can't see her being ordered to pay you a lump sum if she doesn't have the money to be able to do so and if doing so would prejudice her future accommodation needs.
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