where does she stand - possible messy situation

[Citroen999]

hi

my sister is on the verge of splitting up from her husband of 10yrs due to an abusive relationship.

She thinks she covered all the bases when when she met him but i'm not convinced.

She met him after breaking up from her boyfriend/partner. Her and previous partner were not married but had 3 children and she had to buy him out of the house they lived in. She then met the new partner a few years later.

So after she met him they then got married a few years later, she kept the house, mortgage, bills etc in her name thinking this would protect the house as she wanted it to go to her 2 children. They have separate bank accounts. She has never asked him to contribute to the upkeep of the house or her children, she has always paid their full fare for holidays etc he only paid for his.

Both parties are in good jobs earning 50k + a year, he refused to do joint accounts and then it came out he was in £20k debt and did not tell her until a couple of years in to the marriage. So basically he earns his wage, gives her £400 a month towards food shopping and she pays everything else thinking this will protect the home.

Now its all gone bad, both are saying its come to an end, he says " sell our house", she says its not your house it my house, her name is on the mortgage etc, he is saying we are married and he's entitled to half... in the early years he did say it was her house and he had no claim over it, but they are just words now as i'm sure the marriage over rides anything that she thinks she has done to protect herself and the house.

I mentioned this to her that i think shes not as protected as she thinks and she said she could go for his pension as he has a good one but she stopped her pension contributions when she had to pay the mortgage etc as a single parent...

i suppose the question i am asking is where does she stand?

Oh dear, no I suspect she will have to split the house with him, but she needs proper legal advice.

The house is half his, but his pension is half hers. They may decide together that she keeps the house and he keeps the pension and that’s that, but depends on the value of both really doesn’t it.

She shouldn’t have got married, words mean nothing, it’s half his house.

She didn’t cover all her bases. If it was a seamless transition from living together to getting married then those years will be added on to the marriage, so this isn’t a short marriage.

Starting point will be 50/50 but she might be able to negotiate offsetting her claim on his pension, so she keeps more of the equity.

so would any years be taken in to account that she was on her own paying the mortgage before he came along or any years she was paying 50% of the mortgage with her previous partner... it seems like that someone could get married to someone who owns a house and is in the last year of a mortgage and be entitled to half when someone has paid almost 100% back to the bank...

also god forbid, should anything happen to her, he gets the house and her kids could be homeless as the home becomes his?

She can avoid the senario of the children losing everything, if she dies, by making a will, but if she dies while she's still married without will that is exactly what could happen.

could she add her children to the ownership of the house now rather than doing a will? both are over 18yrs old

10 years is a decent length of relationship. She needs legal advice. I was in a very similar situation. Lawyers advised that despite him putting down 0 deposit (I put in £100k prior to marriage and paid the mortgage in full), the property was the marital home and would be counted as an asset. I came to a deal with exh which cost me dearly financially but nowhere near the 50% plus costs I could have been looking at if it had gone to court (I was the higher earner). I gave him a generous lump sum by remortgaging and extending length of repayment term and didn't claim any child support from him. Luckily for me he was always a spendthrift so as soon as he saw the £ signs he signed on the dotted line, bought a new car, had some holidays, paid off some debts and pissed the rest up against a wall as I knew he would, but we got a consent order which meant he had no future comeback on the house.

She could but then her house becomes a marital asset in their current or future marriages.....

She needs to take some proper legal advice

Did she take legal advice before remarrying? I'm guessing not. She would do well to take legal advice now.

Could gift the house to children

Gift with a reservation of benefit
There are some exceptions to this rule. If you retain an interest in the property – for example, you continue to live in the home rent-free – then you are making a “Gift With a Reservation of Benefit.” HMRC will not recognise a gift with a reservation of benefit and the property will be included in the estate when calculating the IHT bill.

No she doesn’t own the house in her own right. She got married and that is essentially a decision to combine her wealth and income with her husband.

She now needs to get a divorce and a financial settlement that sets out how all their assets and debts are split up.

Unless she ringfenced her assets legally prior to the marriage then the house will be dealt with as a marital asset. Marriage is a legal contract and as it's the only one they've got that's how it will be dealt with. She needs to seek legal advice.

It's the marital family home. He's entitled to half. Rightly or wrongly. Many a man has been in your sisters position over the years and "fairness" has dictated that the wife be entitled to half. She is going to have to negotiate hard or rely on his goodwill but he doesn't sound the sort so she is going to need a good solicitor.

Negotiate over the pension - he might accept a lower share of the house if she gives up claim to his pension

Why people get marriage and not have it written out beforehand is beyond me.

Remarrying? This is her first marriage

He’s not entitled to half at all

it is a joint narital
asset
he is entitled to a FAIR SHARe
this could be 50%. Or it could be more or less

the fact who paid what is not so relevant
what is is needs of each party, housing minor children, housing needs, earnings and potential of each party, total assets to split inc pensions and savings etc. only once this is known can they work out a fair split in the eyes of the law. But it’s not her house. And that’s she’s paid the mortgage is not relevant

she absolutely needs sound legal advice

He’s entitled to his share but it’s not necessarily 50%. She will also be liable for his debt most likely.

Assuming he’s on his own with no dependants, he will be deemed to need a 1-bed, but so will she.

This is deliberate deprivation of assets and would go over very badly with the court.

I have recently had legal advice to protect me in a similar situation.

Even if she had gad a legal document drawn up when je moved in to protect the house, the marriage immediately makes it null and void.

The fact she can prove the bills etc are solely paid by her may help her retain a higher equity but basically as they married he is legally entitled to half.

They are married so he is entitled to a share - not necessarily half, but maybe. My ex didn’t pay his share of the mortgage either, that isn’t taken into account, he was still entitled to half my house. Get legal advice asap. She will be entitled to a chunk of his pension.

Basically your sister has got the law totally wrong and left herself massively financially vulnerable. The only way to avoid this would have been a written pre nuptial agreement ring fencing the house.

The court will take into account the length of the relationship (not the marriage). Other than that, the court will look at all assets and debts of both of them and then come to a reasonable division. If he’s got massive savings / pension because he’s only been paying £400 a month in keep, they will be taken into account.

Since the children are over 18 and not his, they will be disregarded.

She absolutely cannot transfer assets to her children to hide them from her husband or the court will land on her like a ton of bricks. The court order will disregard the transfer and she will be ordered to pay a sum to her ex as if the transfer never happened whether or not she has the money.

https://lowrylegal.co.uk/articles/family-law/hiding-assets-during-divorce-in-the-uk/#:~:text=Hiding%20assets%20during%20divorce%20is,to%20being%20held%20in%20contempt.

Does your sister live in England OP?? Her situation would be different if she lived in Scotland.

The house is a marital asset. Husband and wife are each entitled to a share of the equity necessary to meet their "needs". As the kids are adults (over 18), a judge may or may not consider that either parent's "needs" include a need to have a bedroom or two for those children. The starting point for division of equity is 50/50 - that can be departed from if one party's "needs" are greater than the other's, e.g. if one earns £200k and the other earns £20k. It doesn't sound like that is your sister's situation. She needs a family lawyer.

Pre nuptial agreements are not recognised in the English courts. They are not worth the paper they are printed on.

I own my house, I have a hefty inheritance due and I wanted to ring fence it when dp moved in. Because we intend to marry my lawyer agreed to draw up an agreement but confirmed it would become null and void upon marriage.

A friendly judge may take it into consideration but most likely it would be completely disregarded.

That is very out of date. Prenups are absolutely recognised and followed by the UK courts. While the court can disregard a pre nup, the attached link shows the law

https://www.elitelawsolicitors.co.uk/prenuptial-agreement-uk/

Basically, UK law on prenups can be summarised as:

In deciding whether a prenuptial agreement is legally enforceable in the UK, the Court will start from the position that where a couple have entered into a prenup aware of what they were doing and understanding the financial consequences, they should be held to the terms of their agreement unless the result of doing so would be to place one of them in a position of financial hardship.