AIBU tenants in Common

[Somanyquestions1984]

Have been with my partner for 10+ years “on and off” married only for 1 year.
We need to buy a house as we want to start a family.
I work full time in a reasonably well paid profession. My DH works part time in reasonably well paid profession and does minimum hours so he can also work on a PhD (Ancient History) part time. It is a totally different subject area to his current work.
He does have potential to earn more in the future in his current role by increasing his hours but his desire is to become an paid academic.

For the house, it will be myself bringing the whole of the deposit (equity from a previous house purchase). My partner will contribute to mortgage (smaller amount due to disparity in earnings).
My DH does insist that this is temporary and he expects his earnings to increase after the PhD. If I’m lucky enough to fall pg and have a healthy child I would probably want to work part-time which in my area is basically dropping 1-2 sessions.

My question is AIBU to want to do any new mortgage as tenants in common to protect the equity if we were to split. I should say that DH has a greater Kiki hood to receive inheritances possibly more than one as he is only child with Uncles/Aunts who are childless. I will likely not get anything.

@PomPomSugar

Conveyancer here. You’re married so tenants in common means nothing. You need independent legal advice to protect your deposit.

This is not true.

Tenants in common is tenants in common whether married or not - I work in this area of law.

YANBU OP. You’ll need to do a trust deed as well to specify shares. You can always change to joint tenants later.

Post and pre nups are not binding in U.K. courts.

@HeddaGarbled

Post and pre nups are not binding in U.K. courts.

They’re as close to binding as they can be without being treated as ordinary contracts. They will be upheld unless they cause manifest unfairness or there they weren’t freely entered into/there wasn’t proper disclosure. But a post-nup is the only way that the OP can regulate what she would get in a divorce because the family court doesn’t care about whether a house is held as JT or TiC when dividing assets. (Disclaimer: I know what I’m talking about with this)

You need legal advice. Being married complicates it.

Tenants in common is tenants in common whether married or not - I work in this area of law.

True but it won’t make a difference on divorce because the court has power to make any order with respect to property owned by the couple, whether jointly or solely and whether JT or TiC. On death, TiC isn’t ideal for married couples if they both want the survivor to take the house. JT is simpler then. Obviously if that’s not what they want and they want to leave their share to other family members, TiC would be a good idea.

I don't think it's any way to have a marriage ring fencing equity. When I got married, 2 years later, we sold what was my flat that we lived in to buy our house. The house is jointly in both our names. The £200k equity I regards as both of ours.
He is the main easier and all our finances are pooled together in joint accounts. I don't know why you would feel the need the ring-fence money unless you feel the marriage is going to not going to work.

I often read on here about women being higher earners and avoiding marriage in these situations

If a man was accused of avoiding marriage because he earned more than the woman there'd be outcry on here, and everywhere.

Equality means equality. You don't get to choose which bits you want.

It's simply not true to say tenants in common means nothing if married. Yes the courts can make any order but if there is a deed of trust in place they will look at intention.

@Willyoujustbequiet

It's simply not true to say tenants in common means nothing if married. Yes the courts can make any order but if there is a deed of trust in place they will look at intention.

Could you cite authority for that assertion? It is not true. In family court, financial division is governed by the Matrimonial Causes Act 1973. ‘Intention’ is not a specific statutory factor that the court takes into account when dividing assets. You may be confused with the law governing unmarried couples where intention is of key importance. On divorce, how the home was owned makes little difference. In short marriages, contributions are more important and may well lead to an unequal division of assets but that is the case whether or not the home is owned as JT or TiC. The longer the marriage continues, the less important it is that the parties have contributed unequal amounts.

If there is a JT and the parties get divorced, many opt to sever it and turn it into a TiC so if the case comes before the court, it will very often be a TiC. Trust me (I honestly know what I am talking about as I am a qualified solicitor in this area, although no longer practising), whether the home is owned as JT or TiC has no bearing on how the assets are divided (although contributions do but would do irrespective of how the home was owned).

It seems that the OP wants to ring-fence assets in the event of a breakup. She cannot do this simply through having a TiC because of the separate regime that applies on divorce. TiC would be relevant to what happens on death and also in cases where one of the parties was in dispute with a third party creditor (eg if the OP’s DH had debts that the creditor sought to enforce against his share of the home). The only way that there can be a degree of certainty wrt ring-fencing is through entering into a post-nuptial agreement that sets out how assets would be divided on divorce. Even that could be set aside if held to be unfair and on the facts and given that OP intends to drop her hours and the DH might get a payrise, it doesn’t necessarily seem necessary (unless we’re talking a huge disparity in income). OP would need legal advice though.

If they were to divorce now, with a short marriage, relatively young spouses, no children, I’d definitely expect OP to get credit for a larger contribution and for her and the DH to more or less leave the marriage with what they each brought into it, unless one of them has some pressing financial need for a bit more. Pre-marital cohabitation is taken into account but OP says relationship was on and off pre-marriage so I doubt it would be treated in the same way as a 10 year marriage. This outcome wouldn’t be affected by whether the home was JT or TiC.

If they have a child and the marriage breaks down in 10 years, their contributions are going to be less important, although they are still a factor. The welfare of the child will be the first consideration, usually meaning that the primary carer needs to be housed adequately. The starting point is equal division of assets but equality can be departed from for various reasons (often because one party needs more due to being the primary career of the children or because some of the assets were acquired before the marriage). Again, how the home is owned is by itself not important.

Many many years ago, MiL signed her house over to DH for reasons too complex to go into here, but it was done using legal advice and all above board. Around 5 years later, she decided she wanted to move 300 miles to be closer to us. However, property is more expensive here & the equity in her house wouldn't cover the move. I had some legacy money left from my DM so when we found a flat MiL liked, DH put in all the money from the house sale & I made up the balance. We were TiC in the ratio of 63:37 because that reflected what we had put in. The solicitor who drew up the contracts said that this was the most sensible way to work.

When MiL died many years later, our solicitor asked how we wanted the money. Because we are still married, she said she could pay it into a joint account. However, it suited us better to have it divided into the original ratio into individual accounts. Due to messing around by the buyer, she didn't charge us for the 2 separate transactions.

It is perfectly possible and sensible to own a property as TiC. You could agree to review the arrangement every 3 years if the amounts paid towards the mortgage alter the balance of ownership.

If it helps, here is a hypothetical case similar to one I dealt with that was decided by a judge (nobody is identifiable from the facts).

Husband was late 30s, wife a couple of years younger. They were together for 3 years before marriage and were married for 2 years. No kids. H had bought a house before he met W and it was never in joint names but it was their home during the marriage and a lot of their pre-marriage relationship. H earned 80k and W only about 25k.

H had bought house for about 300k. It had increased in value since they’d married and there was equity of about 250k by the time of the divorce. W got 40k lump sum which would enable her to pay a deposit on a flat but without which she wouldn’t have been able to buy anything. H kept the rest and there was a clean break (ie neither could claim maintenance against the other). H paid the lump sum by remortgaging the house.

Here, the asset split was justified on the basis that:

• short marriage so less financial dependence so unequal division appropriate
• both spouses young so time to build up more assets in future
• H had contributed all the assets so equal division inappropriate
• short marriage
• no children
• but W got enough for a deposit for flat, reflecting her needs and did not leave with nothing, despite not having made a financial contribution.

Had they had a child, I’d have expected a very different outcome.

@GCAndProud

My own divorce where it was upheld.

Yes of course they can be set aside and the welfare of the parties taken into account but as long as its properly drawn and freely consented to at the time the court will look to it.

[quote Willyoujustbequiet]@GCAndProud

My own divorce where it was upheld.

Yes of course they can be set aside and the welfare of the parties taken into account but as long as its properly drawn and freely consented to at the time the court will look to it.[/quote]
That’s not authority though. I can’t comment on exactly what happened in your divorce and I don’t know whether your financial order was made by consent or by a judge but I can tell you that neither the statute nor the case law says anything about the mode of ownership influencing what happens to the property, especially the home. As I said, many JTs are already severed by the time the finances come to be determined. It certainly doesn’t offer any protection in terms of a future divorce, which is what the OP is seeking.

It was made by a judge.

I respectfully disagree that a declaration of trust affords no protection in the event of divorce. As I said they can be set aside but that is wholly dependent on individual circumstances and the factors in the case. I have seen them upheld numerous times and as legally binding agreements it is simply untrue to say they afford no protection. Posters are freely able to google that they are an advisable belt and braces approach.

@Willyoujustbequiet

It was made by a judge.

I respectfully disagree that a declaration of trust affords no protection in the event of divorce. As I said they can be set aside but that is wholly dependent on individual circumstances and the factors in the case. I have seen them upheld numerous times and as legally binding agreements it is simply untrue to say they afford no protection. Posters are freely able to google that they are an advisable belt and braces approach.

But their existence plays no instrumental role in the division of assets! The court has power to divide any assets belonging to the spouses, whether they are jointly or solely owned. All a deed of trust does is set out the proportions in which property is owned. But even something that was solely in OPs name would be up for grabs in the divorce.

It really is not prudent advice to tell someone to ring-fence assets on divorce through a deed of trust. As I said above, if they split now or in the near future, I’d expect the OP to get credit for her larger contribution. However, once you add kids into the mix and a longer marriage, it’s going to be less important that one party contributed more at the outset. This is especially true for the home.

A deed of trust would be binding if the parties were not married as it would determine conclusively what their shares were. However, a legal adviser who advised that a deed of trust in respect of the family home would protect their client in terms of ringfencing a contribution would probably be negligent because the court has no duty to uphold it - its power under the statute transcends ownership rules. The only way you can do so if you’ve already married is through a postnup.

You may well have got an outcome in your divorce that corresponded to what the deed of trust said but that doesn’t mean that the court was bound by the deed of trust or upheld it - it just means that that division was what the judge considered fair, having regard to the factors under the Matrimonial Causes Act. Often a deed of trust will correspond directly to contributions and contributions are very relevant in short childless marriages. That’s still not the same as the deed of trust being binding on the court or ‘upheld’.

One thing that a deed of trust does helpfully do is provide a clear record of contributions but these can also be proved in other ways. And as I said, if you have kids and a longer marriage, contributions assume less relevance either.

@Gcandproud

I don't see this as helpful as I feel you are contradicting yourself to an extent and furthermore you appear to be misquoting me.

The fact is that mine played a significant role in the division of our assets where you assert they do not. It was instrumental in that our judge was persuaded after hearing arguments and held up despite challenge. I've repeatedly stated they can be set aside and outcomes are dependent on a variety of factors. However, they can be and are useful. Which is why they are a very common device offered by any number of firms. It's disingenious to say otherwise.

As I said people can read for themselves should they be inclined. There are never any guarantees but they do afford protection. Enjoy the rest of your day

I don't know anything about the legal situation, but I would want to know (if you feel able to share) why you had the 'on and off' situation. There's a big difference between a situation where you had a fairly casual relationship that sometimes lapsed, and one where one of you has done something bad to the other (cheating etc.). And different again if you suspect there are ongoing issues, or incompatibilities that may never be fully resolved.

I'm sorry to be repeating, but I really don't think your husband sounds realistic about his 'academic career'. It shouldn't be like this, I know, but I think you would have to be beyond stratospherically lucky to get any kind of academic career on the back of a part-time PhD in Ancient History. Saying it's 'not guaranteed' is just a long way from reality. I do know about this; I'm precariously clinging to my own academic career. I have a disgustingly impressive CV and I am probably not going to get a permanent job; my field is marginally less competitive than Ancient History (quite closely related, which is how I know).

What I'd want to know is, when he says he understands the academic career might not happen, does he really? And do you? Because it could take a decade or more of dicking about with your life for that realisation to sink in, and all the time he will be juggling short-term, unsociable jobs all over the country. It's not very likely he would be able to keep working part-time during that period, so he'd have to make a choice.

If that all happened, how would you feel?

@Willyoujustbequiet
I suspect your outcome was in spite and not because of your DOT.

What @GCAndProud says is very correct and is the best place for anybody to start when trying to understand the basic legal position. I can say this with full confidence because I am also involved in this field and contribute as a EW on the matter of trust, debt and beneficial ownership of assets, business and private.

In the High Court.

I strongly suspect that any woman who came on here saying that her husband who earns more than her was taking legal advice on how to try and limit the amount of any new property she owned would be told to LTB sharpish by most of the MN faithful

True, @Eleganz

Generally, this doesn't sound like a marriage to me. What's the point of getting married and then keeping everything separate?

Get legal advice, OP.

Thank you @Magnited.

@Willyoujustbequiet I appreciate that you have your own experience of your divorce but as I have said, I am a trained solicitor with several years expertise in this specific area (although I work in a different field at the moment). I promise you I know I am talking about when I say that a tenancy in common does not ring fence assets in the case of divorce. Would you tell a doctor that they had no idea just because you’d undergone an operation yourself?

If you’d like to tell me where you feel I have contradicted myself, I’d be happy to clarify.

Yes exactly, I cannot think of any case I have been involved in where an 'undivided share' in property (the more accurate definition of TIC) has had a bearing. TIC or JT, irrelevant. It does not even figure in the background.

One often misquoted aspect of the OP's post is the need to get the mortgage as TIC. I see so many people here talk about getting their name on the mortgage. A mortgage is debt. The real property is separate and that is the asset. Normally the two go together so a joint owner will also be jointly liable for the debt. Between the two an owner has the 'right of equity', ie a share in the asset subject to the debt.

In the same way I would not recommend a poster coming on MN to seek advice about cancer treatment, I can only recommend the OP getting good legal advice, whilst recognising that British law does not generally allow one partner to a marriage to sew things up too tightly. If the marriage fails the Courts have power to intervene. They can even change the terms of a trust set up long before the marriage has taken place, if it is fair to do so.

Surely in some cases a deed of trust has worked.
It's worth getting one but... With the caveat that it may not be counted on depending on individual circumstances at the Rome of spilt.

Op I find posts like this sad. I totally understand and agree for second marriages, asests to protect for children, this needs to be closey addressed.

However for a first marriage?
It seems sad to me but I'm an older romantic!

It feels cold.

Put it this way... For my life I wouldn't have been anywhere near as happy as I am with dh.
Don't get me wrong I can be happy on my own, I like my own company etc... But dh enriches my life beyond riches and he's given me his best years as I have him.
We've raised a family etc.
I feel privileged to have shared his life with him so far.
There is simply nothing money value I could place on his presence in my life.
He came to the relationship with stronger financial support.
However a decade later its me who has provided some security with ££ and been able to pay for extras etc (I do also work now)

I was a sham for many years and we struggled quite a lot ££ but even then never any pressure to go back to work he said for me to do exactly what I wanted too.
Things are so so much easier! I bet between us we earn less than most posters on this thread but it's surely that give and take and love... That matters??
With any second marriage I would be ruthless.

You married it's hard to protect your money but that fact you asking means you not sure about him.. get professional help re deposit x

Surely in some cases a deed of trust has worked

As I said above - if a Deed has worked it has been because it fits into the judgment - ie in spite of not because of. The Judge's these days - especially at the High Court - are much more clued up and rounded than they used to be. The Maxwell and Guinness trials were the catalyst for that.