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Declaration of Trust query

(12 Posts)
gracehedley Tue 27-Sep-11 13:47:34

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 Tue 27-Sep-11 14:10:24

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 Tue 27-Sep-11 14:52:30

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 Tue 27-Sep-11 15:02:11

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

babybarrister Tue 27-Sep-11 18:55:39

very difficult to give clear answer - depends on circumstances - did your current H take legal advice? if not, to be honest I doubt that as a post nuptial contract it would have much weight. having said that, the court would no doubt want you to be able to keep the accommodation ... will depend on what else is in the "pot" and what H's "needs" and yours are ...

you need specialist and good advice as Collaborate says - if you indicate where you are, posters can suggest who might be good ....

gracehedley Tue 27-Sep-11 21:15:00

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.

babybarrister Tue 27-Sep-11 22:21:34

Thring Townsends very good

in my opinion it is likely to need to be independent legal advice ... the issue is very up in the air though and is being considered by the Law Commission at the moment

Collaborate Wed 28-Sep-11 00:47:16

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

babybarrister Wed 28-Sep-11 12:53:54

But he was offered independent legal advice though, just chose not to take it! In addition of course, whilst not German, he was French/Italian so was sell used to such concepts .....
Radmacher of course does not actually state what the criteria will be merely alludes saying they might be ....I think we all have to wait for the Law Commission report. There is a Privy Council case of McCleod which also makes interesting reading and I think is rather more on point than Radmacher as McCleod was a post nuptial settlement and within the common law system. My feeling is that without at least having been offered independent legal advice, certainly when matters are being dealt with in a common law jurisdiction [rather than a continental one where things are often done differently with one lawyer advising both parties] that it is very unlikely to be binding in any meaningful way - however, the law simply has not clarified this one way or the other.

Collaborate Wed 28-Sep-11 13:30:09

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!

babybarrister Wed 28-Sep-11 14:04:16

well on the back of Radmacher maybe that is OK! I think e all need to get the buggers to sign something saying that they have been warned to get their own advice .....

Collaborate Wed 28-Sep-11 14:31:57

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. wink

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