Does protecting the deposit ever work?

[Disagreeable]

When DH and I bought our first home - I put in the entire deposit (£280k) which was combination of inheritance, savings, plus money I made from selling my flat (which I bought before I met DH and was in my sole ownership when I sold it)

When I with my solicitor who was overseeing the sale of my flat (solo) and the purchase of our first family home (joint) - he told me that as I had married DH before selling the flat that essentially it was all joint assets now, and that as I had DC with DH that it was all in the pot.

So we bought the house as joint owners with equal share despite all of sizeable deposit coming from me.

But I keep seeing threads about deposits being protected and different legal set ups.

Was I given the wrong advice?

Yes. If you make a will and then get married the will is void.

You should make a new one protecting your deposit and proof when the money came from. if your DH agrees and signs the document. It should’ve been done after marriage.

Even in a divorce where parties have a pre nup or tenants in common ownership with unequal shares these can be overridden to ensure both parties get a ‘fair’ share.

but the inheritance is the family home and intermingled with family finances now so if you were to divorce it’s in the pot for splitting

Ah so both responses contradict one another.

@millymollymoomoo it sounds as if you are largely in agreement with what my solicitor told me 5 years ago. It's all going in the pot so there was no point drawing up anything to "protect" the deposit?

@Silvertulips I can't imagine my H retrospectively signing anything and even if he did - sounds like it wouldn't be worth the paper it written on? To house kids in 2 x homes he would need a significant % of that deposit so that is more relevant that the fact I paid the whole deposit?

Need especially to house children can be a big consideration in financial settlements, it depends how big the pot i. Actual outcomes in court can vary different judges, different circumstances, its hard for anyone to say without a lot of detail. The longer you've been together the more it becomes all one pot, the less any ring fencing will matter. Putting money into a joint asset tends to make it joint money. Was it a conveyancer or a lawyer specialising in family law you spoke to at the time? If it's the later I expect their view was more informed based on your specific circumstances.

It’s in the pot.

as was mine

how it would ultimately be split would depend on

length of marriage
assets available
needs
earnings ( potential of each party)
and so on.

not automatic 50:50 but courts will be try to get near to that if there are enough assets to provide needs

who paid what and earned more etc during the marriage is largely irrelevant for most divorcing couples

I wonder why couples spend money/effort drawing up paperwork to protect deposits if it goes into the pot regardless? (Presuming children and reasonable length marriage)

The solicitor was to oversee the sale/purchase, but it was a good local London solicitors that do property, family etc. And I was talking to the senior partner when he told me no point protecting deposit due to marriage and kids at that point - so took his word as gold.

well a deed/pre nup can carry some weight but more so if both parties have had independent legal advice and it’s fair. Eg if it’s say party a gets 90% and party b 10% and it’s old ( eg 10 years ago and circumstances have changed such as children coming along etc ) it will be disregarded.

if there are enough assets of the marriage exc inheritance then it’s possible it might be excluded - but rare because usually there is not and also it’s low complexity intermingled.

also, as example, one party may have contributed deposit but then later may take a work break or something which means the other also pays in to the pot.

my solicitor was clear that for us it was in the pot. We were married 15 yrs and had 2 children. 50:50 split provided needs ( we both earned similar )

Assumes England/wales

Your solicitor was broadly right. Unless it’s a short marriage no kids, the most likely outcome would be that everything goes in the pot (along with other assets like pensions) and that the starting point for sharing it fairly would be 50-50. That would be the case even if you had recorded that the deposit was yours. To have a chance of keeping it separate you’d need a proper pre-nup- that obviously wasn’t an option at the point you bought the house as you were already married by then. You could have had a post-nup (and could still have one if your husband would agree)and that might have been effective (although it’s not guaranteed)- but that would only stand if you’d both taken independent advice.

I've seen people do this (and done it myself) but only when not married, which is sensible.

There is too much complexity in your question to give you a definitive answer. Marriage and divorce provisions are set in statute. People can draft agreements in accordance with those provisions. But if they come into conflict law will take precedence. So if a judge is able to uphold the agreement and abide by divorce provisions they will. If they can’t they generally go with the divorce provisions.

You need a prenup drawn up and signed before you got married.

Hmm, yes, that is where I went wrong possibly. I married first and then decided to sell the flat (where most of the money was wrapped up) and the solicitor said the flat had become a joint asset already so too late to protect the deposit/equity. We have young DC, married for 7 years and neither of us are high earners. Him - roughly 50 (no savings). Me - 79.

Does either of you have much pension?

@NextMilton yes - he has public sector pension of 25 yrs so fairly substantial. I have much smaller pension pot.

That’s good news- if it’s civil service or similar that could be worth the same sort of amount as your deposit, if he’s been on a decent salary throughout.

A lot depends on how big the assets are when the split happens. If there’s enough to go round to house everyone then these documents can definitely be held up. Otherwise not really.

Are you actually looking to separate ?

Well, yes, @millymollymoomoo but a classic case of battling with I should stay for the kids and the £/house.

I know my future self would want me to leave. There is very little love left in this marriage. But finding it hard to accept the impact on children and ££.

Jumping in for advice if that's ok?What happens if the house was bought in my name and deposit paid pre-marriage, then got married a few years later?

Marriage is essentially a contract for the transfer of assets. As soon as you say "I do", 50% of what you own moves to the person you are saying "I do" to and 50% of what they own moves across to you. Traditionally, this has tended to benefit the new wife but it doesn't always, as is the case here. It doesn't matter when you bought the house, when you received the inheritance or anything. There are a few things you can do to try and protect yourself but none of them are guaranteed to work as the starting point is 50/50 split. As others have said, where it has been a short marriage or there are no DC involved, a judge may agree a different split. Some other factors may also influence this. I suggest you get some legal advice to see if any of these might apply in your circumstances.

Basically marriage trumps everything but if they can honour other legal documents as well then they will.

But job number 1 is to make sure both members of the marriage are able to house themselves and the children appropriately after the marriage.

So if you had a total of £10m of assets and a ring fenced deposit then it is quite likely that the assets would be split £5.14m and £4.86m. On the other hand - £285k of assets would never be split £282.5k and £2.5k.

If there's huge disparity in wealth the best plan for the wealthy person would be to not marry. Sorry, I know thats grim

But if you have children together I would make peace with the share money going to him on the basis that it's likely it will benefit your children to have two decent homes and it will probably end up going to them eventually?

Maybe go and see a solicitor? Ultimately it will all come down to negotiations.
But you should be able to either get a decent share of his pension or persuade him to waive the share of his pension in exchange for value in the house.
Having read that, it may not be such an unequal balance of assets after all