Declaration of Trust query

[gracehedley]

Have had different opinions expressed on this by 2 solicitors - grateful for any advice - here goes - been married 9 yrs. Current husband moved in to property I owned 50:50 with my former ex. On sale of that house we divided proceeds (i.e. me and my former ex) and I purchased new house with current husband. This was 3.5 years ago. At this point we had a declaration of trust drawn up to protect my investment of 180k in the new house. Current husband put no cash in to the purchase of house but has since paid mortgage (payments so far total about 17k). My question is - would this agreement still hold on divorce - i.e. would I still get the 180k? One solicitor said prob not, one said yes ... aaarrggghhhhh and thank you :D

[Collaborate]

In a way they're both right.

The court can take the recent source of the £180k into account and award you far more than him. Your different ages, incomes, and needs are all relevant factors too. Google s.25 Matrimonial Causes Act for the list of what's taken into account.

Entering into a deed of trust when you were about to get married was a bit of a waste of time. You should have entered into a pre-nuptial agreement. You can still enter into a post-nuptial agreement and don't have to separate to do so. If you want that security I suggest that's what you do. If you're getting divorced then you need bespoke advice. Make sure your solicitor is either a Resolution accredited specialist in financial matters, or on the Law Society's Advanced Family Law Panel (you'll have to ask them abouth their specialty under this).

[gracehedley]

Thanks Collaborate. The declaration of trust was made after we had been married for several years, not before. It was when we purchased the house together. Don't know if that makes any difference?

[gracehedley]

by the way, yes, divorce is on the cards.

[gracehedley]

Thanks baby barrister. What counts as legal advice - we did discuss the implications of the dec of trust with the solicitors when it was drawn up - does that count? By the way I am in the Bristol-Newport-Gloucester triangle if anyone has any suggestions of good solicitors.

[Collaborate]

BabyB - what about Radmacher? Legal advice for the Husband wasn't necessary.

[Collaborate]

Does your definition of being offered legal advice include a warning from the drafting solicitors that they should get that advice, and giving them a list of local solicitors? I had a deed of separation around a year ago that I did just that for (husband unwilling to take advice though could easily afford it - wife unwilling to divorce just yet) so I'm crossing my fingers right now!

[Collaborate]

One of the paragraphs in the deed made just that point. I also advised the client that she got most protection with him getting legal advice.