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Declaration of Trust contested for unmarried couple split - family home

4 replies

CookieDoughKid · 02/12/2012 12:12

Posted under legal as well
I've separated from my partner this year and we have two kids under age of 5 together. We are not married but we do own a house together as Tenants in Common with a Declaration of Trust (DoT) drawn up. My ex moved out to his own place. I kept family home.

I've always been the breadwinner and paid all bills and mortgage with only a few months contribution from my ex during the entire time we lived in the house together, which was for 5 years. My ex did not have regular income or a regular job for majority of time. Even if he did have a job, I would gather he only contributed towards the mortgage maximum 4 or 5 months during the 5 years we were living in family home together. I should be able to prove much of this financially and for sure, my ex will not be able to prove he had steady job or income anyway. I have always had a steady job and income.

When we bought the home, the DoT was drawn as 50:50 as we put in equal deposit money. (5% deposit EACH). However, I sunk a further £80K cash into house for renovations and to reflect the financial support (burden rather) of supporting my ex, the home AND paying for childcare and to protect my interests, I had the DoT rewritten which now stands at 91:9 share in my favour.

My ex spent about 9months helping to renovate the house for which he was not paid. There was no written agreement to reflect this but I acknowledge his contribution and also that it contributed to increase in value of the house.

I had the DoT rewritten, some 4.5 years later, with his consent, and we both were given legal advice. The DoT now stands at 91:9 in my favour to help protect my legal contributions. and there are some extra conditions that my ex should be paying 9% towards bills & mortgages (which he has not).

I have taken full responsibility of ongoing mortgage payments, bills, and the children live with me full time. The deeds to the house are in joint names and we have a joint mortgage. The bank will not allow me to have the mortgage in sole name but I can continue making full payments.

I have this clause in the DoT that says 'failing agreement under (i) (which is to agree to purchase or sell their interest) the Property shall at the expiry of 3 months written notice be placed on the market for sale and the gross proceeds dealt with in accordance with clause 3,4 and 5 hereof.....

Can my ex now contest the DoT for a bigger share in equity as he is saying he signed it (and it was witnessed) under DURESS? What will the courts likely to decide? Can he force me to sell the family house? What are my options because I have children? He currently lives in a 2bed flat which he owns and I have the 5 bed family home with an Au-Pair that allows us both to work and is only 5 mins walk from very good schools.

Please provide a little guidance, I'd much appreciate it and i have every intention to see a family lawyer. I am just very daunted with my ex's threats. Thank you.

OP posts:
botandhothered · 02/12/2012 13:23

I was in a similar position many years ago, though. At that time as I had dc he was unable to force me to sell. Until your youngest is 18, you have every right to stay in the house. See a solicitor asap.

Collaborate · 02/12/2012 19:11

There are no rights as such. Merely powers of the court. Have also posted on your other thread.

Xenia2012 · 02/12/2012 19:47

If he had his own advice at the time his share was changed to virtually nothing it would be hard for him to argue that should be ignored.

Neither of you changed this clause at that tiem..

'failing agreement under (i) (which is to agree to purchase or sell their interest) the Property shall at the expiry of 3 months written notice be placed on the market for sale and the gross proceeds dealt with in accordance with clause 3,4 and 5 hereof.....

Have you looked into whether a relative of yours could take over his name on the mortgage? This is often possible - you might have a parent with an income but no mortgage who could replace forh im as your income is not apparently regarded as big enough by your own lender to take the loan on just yourself?

I think under the Children Act as you are trying to house a child albeit a house must bigger than needs and given the tiny amount he is entitled to it is unlikely a court woudl order a sale but it's pretty rotten for him that he has to stay on them ortgage which could stop him buying a bigger flat than he has because of his tiny interest in your place and your inability to get him off your loan.

CookieDoughKid · 04/12/2012 21:14

Thanks everyone for your contributions. Xenia2012 - I hear you. I think I have a strong case. Thanks.

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