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Sister wants a separation - afraid husband won't leave her house - what can she do?

(3 Posts)
bowlofcherries Mon 29-Jun-09 10:16:15

My sister has been married for 6 years and doesn't have children. Her husband has a problem with drink. He is a member of AA and can go for long periods without drinking but always seems to go back to it. They get on okay when he isn't drinking. He's had a couple of heavy sessions recently and she has had enough. They've been here before and when she has said she wants an end to the marriage he has always said she won't get him out without a fight. He moved into her house - still in her name - and still had a house of his own to sell which he did eventually. But for the first 3 or 4 years he contributed nothing to the running of the household. In the last couple of years he has started to pay some bills -(not the mortgage though) as if he knows that this will give him some rights if they separate. He has money from the sale of his house which he has been dipping into so I don't know how much money he has left. My sister is seeing a solicitor today. Just wanted to know where she stands if he refuses to leave - would she need to get a court order? I guess she hopes that separating will give him the shock he needs to possibly change his ways although she knows this is a very long shot. Anyone been in or know someone who has been in a similar situation? TIA

cestlavielife Mon 29-Jun-09 15:44:12

is her property - she can get him out! change locks and not let him in.

that in first instance...then
see also trusts of land act -

www.edwardsduthie.com/index.php?selectedpage=services_main&content_category_id=3&content_id=136
Constructive trust

If B did not make a direct financial contribution to the purchase of the property in A’s name, the concept of resulting trust cannot apply. The second, more complex concept is known as ‘constructive trust’. But there are two very different ways in which this can happen, and I must set them out separately. They are:

1. Where there is an express agreement, arrangement or understanding between A and B as to who should own what particular share in the property, or, at any rate, A promises B or induces B to believe that B will receive a share in the property. Such an agreement, arrangement, understanding or promise may be in a formal document or it could be confirmed by a statement only made orally and very imprecisely.

However, such an express agreement, arrangement, understanding or promise is not enough by itself, unless it is in writing and signed by A (this would then be called an ‘express trust’ rather than a ‘constructive trust’). Except in that case it is also necessary for B (the person claiming a share in the property) to have acted to his or her detriment (disadvantage) or altered his or her position in reliance on that agreement, arrangement, understanding or promise.

2. Where there is no such express agreement, arrangement, understanding or promise the Court may in some cases regard the matter as if there had been one. Often the Court calls this ‘imputing a common intention’. In order to do this, the Court looks at the conduct of A and B in relation to the property. If B contributed directly to the payment of mortgage instalments, or to payments for a substantial improvement to the property, the Court may infer that this must have been because there was a common intention to share the property. People do not usually pay other people’s mortgages for nothing. But less important contributions, like contributing to household expenses, will not do, because there may be many reasons why people pay those, other than an intention on the part of A to give away a share in the property to B in return.

Ascertaining the share

The major difference between the two types of trust – resulting and constructive – is that the concept of a resulting trust relies upon the precise share in the property usually being based on the amount of the direct capital contribution, proportionate to the purchase price. However, under the concept of constructive trust, once it is established that either through 1. or 2. above the intention was for someone to share in a property then the court will take into account a wider range of factors, not just the proportion of the contribution to the purchase price, in deciding what the amount of that share should be.

bowlofcherries Mon 29-Jun-09 17:46:51

Thanks very much cestlavie.

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