Talk

Advanced search

Mumsnet has not checked the qualifications of anyone posting here. Free legal advice is available from a Citizen's Advice Bureau, and the Law Society can supply a list of local solicitors.

What factors influence the equity split on seperation?

(12 Posts)
ThisBoyDraculaDrew Sun 25-Oct-09 21:11:41

Firstly I know that I need to take legal advice, but the situation is not advanced enough for that yet so I am just trying to get a heads up.

Background.
Not married.
Together for 14yrs.
Joint mortgage and deeds for 11yrs
Both contributed equally to deposit

I was assuming it would be 50:50, then I saw that as I would be housing the children I might be entitled to more - so was mentally assuming 60:40.

Then a friend says no I should be entitled to significantly more as I am the primary income earner (approx 85% of the earnings are my salary). So therefore I should be entitled to more (85%?). I am not convinced by the latter - although it would be nice - the reason that I bring in 85% of the income is because DP is the main carer - and threfore works only a small number of hours, and that he shouldn't be penalised for looking after our children. She thinks I am being soft for not taking into account the relative earnings.

CHOOGIRL Sun 25-Oct-09 21:55:30

I'm not a lawyer but I think your friend is incorrect. My partner and I are not married and I earn 100% of the income - by that logic he would be left with nothing - despite contributing 50% of the deposit.

I would work on the assumption 50:50. Child support will need to be dealt with separately.

ThisBoyDraculaDrew Mon 26-Oct-09 20:13:08

Any other experience.

FWIW i think that my friend is wrong about income too...but I think that the 60:40 thing for the DCs is "enforceable". CAB weren't convincing today...but although they were helpful on lots of things they did seem a bit vague and unsure on that issue.

CHOOGIRL Mon 26-Oct-09 20:53:01

Sorry, but I'm not sure where 60:40 comes in. Just because you have children it does not mean that you acquire additional legal rights over the property. There is no such thing as 'common law' in England.

If your DP is the main carer, why will you be housing the children?

ThisBoyDraculaDrew Mon 26-Oct-09 21:17:46

DP is currently the main carer (but only marginally).

When we split I will become the main carer.

The 60:40 I am getting from googling, which suggests (although is v v unclear) that anything up to 80:20 can be awarded by the courts where children are involved.

Lots of websites (legal type websites) suggest that the discussions start at 50:50 and then adjustments are made based on financial contribution to the home, and residency.

I am just so confused.

CHOOGIRL Mon 26-Oct-09 21:34:39

It can be very confusing I agree - my (unmarried) friend is going through a split at the moment.

I suggest you find yourself a solicitor who can advise on your personal circumstances and talk to you about your (and your DPs) rights as a co-habitee.

Does your DP agree that you'll be the main carer when you split? You may run into problems if he doesn't agree and plans to remain the main carer. Something to bear in mind.

My other post wasn't meant to come across so bluntly

cestlavielife Tue 27-Oct-09 16:15:01

this is useful

[http://www.edwardsduthie.com/index.php?selectedpage=servicesmain&content_categoryid=3&c ontent_id=137]

basically there is the trusts of land act and also the childrens act schedule 1. TOL act is one issue - under childrens act you could if children reside wih you ask for more share from the sale - hence the 60/40 idea. you could argue bigger share under TOL arguing you have put more money into it. that is differnet from the residence of children angle. but he could argue he contributed non-financially and could cost up his childcare provided?

in my case i intend to apply at court for 50/50 split - just because exP would make it long and drawn out if i bring in childrens issues into financial issues. i want to keep it simple. but if he beging to fight and argue then I can bring in childrens act... i hope he will see sense and jsut accept 50/50.

i need the equity relaised from sale to purchase elsewhere. he could of course buy me out - tho difficult as he is not working at present...

i am the main earner - i moved out of family joint owned home and am renting. he stayed in former family home and is not paying even the mortgage on it - is underpaying.

he is currently unemployed. contact is supervised under court order so he is not main carer . (tho he would argue he was so from 2005-2007)

in your case, your ex may apply for shared residency of dcs so it could get more complicated.

will he agree to sell the property?

you could go to a (financial) mediator to discuss this - doesnt need to go to court if you can agree what happens when you split...

cestlavielife Tue 27-Oct-09 16:15:34

trying link again

[http://www.edwardsduthie.com/index.php?selectedpage=servicesmain&content_categoryid=3&co ntent_id=137]

cestlavielife Tue 27-Oct-09 16:17:23

link wont work but it says
Case Plan for Trust of Land Act (With Children)


The Court can determine the extent of a party’s interests when an application is made under the Trusts of Land and Appointment of Trustees Act 1996 and can also order a sale of the property.

When an application is made under the Trust of Land Act, the Court can determine what share each party has but would also consider postponing either the sale of the property of payment of a lump sum from one party to another if the Court considers that it was in the best interests of the children that this is postponed until each of the children have obtained the age 18 or have finished fulltime education.

An application under the Trust of Lands Act 1986 can be made either in the High Court in the Chancery Division or a Family case in the Family Division. Alternatively, it can be made in the Local County Court where the defendant lives or where the property is situated.

An application is made by completing a Form N208 with a written statement in support of the claim. A Court fee is payable of £150.

The defendants in the case would be any other owner or any other person with an interest in the property. Each of these people must be served with the proceedings.

Upon service, the defendants must file an Acknowledgment of Service Form and written evidence within 14 days.

Once an Acknowledgment of Service Form is filed, the Court will fix a hearing for directions. At the Directions Hearing, the District Judge will consider what additional Orders need to be made for the filing of evidence and the future conduct of the case, as well as fixing the timetable for the final hearing.

The case will then be adjourned for the final preparation of the case and the listing for a final hearing. The final hearing will not be for some months after the Directions Hearing.

At the Directions Hearing, the Court will make Orders for discovery and that is the requirement of each party to disclose to the other party all relevant information and documentation relating to the case.

The Law

When two people live together, there is no body of legislation in place to protect them as there is with married couples. The law, in this regard, is presently under review. The only recourse available is contract law or complicated trust law in relation to the property.

Where property is held in joint names, the law assumes that it is held equally, ie, 50:50, unless there is evidence of an agreement either verbally or in writing that the shares are in some different proportion. When the position is set out in writing the position is normally clear cut. However, where there is no written agreement and where one of the parties claims a substantial and significant contribution to the purchase, upkeep or improvement of the property then the Court can make a determination that the shares are held other than equally. This very much depends on the strength and reliability of evidence.

In deciding whether to order a sale or declare a person’s interest in a property the Court must take into account the following factors which are set out in Section 15 of the Act.

a. The intentions of the person or persons (if any) who created the Trust;

b. The purpose for which the property is subject to the Trust is held (ie, the current purpose rather than the original purpose).

c. The welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the Trust as his home and;

d. The interests of any secured creditor of any beneficiary and the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in the property subject to the Trust (or in case of dispute) of the majority (according to the veil of their combined interests).

Property Law

In order to decide whether someone (call him/her ‘B’) has a share in a property, the legal title to which is registered in the sole name of someone else (call him/her ‘A’), there are two main legal concepts which are relevant.

Resulting trust

The first is known as a ‘resulting trust’. This arises when B has made a direct financial contribution to the purchase of the property in A’s name, and there are no circumstances (eg an express or implied agreement) to show that the contribution was intended to be a gift or a loan. For this purpose we must look at how the price was found and paid at the time of the purchase itself, and not at, for example, who paid the mortgage instalments later on. A resulting trust means that A holds either all or part of the property on trust for (ie for the benefit of) B. I deal with the question of the size of B’s share under a resulting trust later on in this letter.

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.

Family Law and Children

As a matter of family law, because you and your (former) partner have had children together the Court can order payment of capital to cover limited past and current capital needs and towards the purchase of a property. The Court can also order a transfer and/or sale of a property to be used to house the children.

Where money is ordered to be paid to purchase a property or a property is to be transferred then this can only be on the basis that the capital is in effect held on Trust for the children until they are aged 18 or 21 when the capital will revert to the children’s father. This may often mean that the property will then have to be sold.

The Court has the power to make an Order for child maintenance only where the amount of child maintenance is agreed, and in other very limited circumstances. Otherwise an application has to be made to the Child Support Agency to assess the amount of child maintenance.

The Court has no power whatsoever to order payment of maintenance or capital for a former partner. Despite popular use of the term, there is no such concept in law as ‘common law’ husband or wife.

ThisBoyDraculaDrew Tue 27-Oct-09 17:58:26

thanks,

He has agree'd to me having residency. He may help out with some after school care rather than child minder for example but they would still be primarily resident with me.

Join the discussion

Join the discussion

Registering is free, easy, and means you can join in the discussion, get discounts, win prizes and lots more.

Register now