Should I let DP take a share in the house?

[Minki]

DP and I are getting married next month. He has 2 kids aged 11 and 8 and I have 2 boys aged 6 and 4. We don't yet live together. We will be having a pre-nup at my request because there is a lot of equity in my house, which DP and his kids will move into at some point, and I earn significantly more than DP. I got badly burnt in my divorce last year (after my ex had an affair and left us) and spent 30k on solicitors and court proceedings trying to stay in the house so I want to do everything possible to protect myself and the boys and to have peace of mind if things to go wrong. My solicitor has told me that getting re-married is a big risk as pre-nups are not necessarily enforceable and my partner could make a claim on my assets, including on the house. Things are further complicated because my ex still has an interest in the house which is repayable if I do re-marry. That said, I love DP and I want to build a life with him, including by getting married. My solicitor has said that if I must re-marry then to keep everthing separate, i.e. do not let him take a share in the house unless he makes a capital contributions. This creates a couple of problems. First of all, we need capital to pay off my ex who could otherwise apply for an order for sale if we don't repay him. DP was going to sell his house and we would use the proceeds to re-pay my ex and give DP a commensurate share in the property going forward (which will only be around 4% in any event). In addition, DP does not want to pay rent to me and says if he is paying money to live somewhere he wants it to count towards something. My solicitor countered this by saying that DP would need to pay to live somewhere anyway. In addition, I am broke and have very little money to live in so it would make sense to let him pay a share (probably only a 1/3rd share ) of the mortgagae going forward and to split the bills with him. Everyone benefits as DP gets an investment interest plus a bigger property where his kids will get a room each and I start saving a lot on living costs as I really cannot continue the way things are now. The catch is that my solicitor says that I am crazy to give DP an interest in the house, legal or equitable. Who is right and what should I do to protect myself? Bottom line is that I want to stay in the house in the event we split and I want to leave my share of the equity to my kids, all of which is covered in the pre-nup. DP would pay in capital which would give him a 4% interest and pay 1/3rd of the mortgage going forward (I would keep all equity up to the point he starts paying then we split the share 2/3rds to 1/3rd.

• but I can prove how much money I have put into the new house so would expect to get that back, should our relationship fail, and if I got back what I put in^

In the event of a divorce, depending on the length if marriage that may not matter either.

The advice I have got (from a top notch family lawyer) is that they are very likely (95%) to be enforceable in the early years of marriage, increasingly less over time, at which point I am thinking that it might be better to rely on trusts etc for my kids.

It's a shame Xenia's not around any more. She was have a cautionary tale for the OP

Would she?

People will assets do remarry but it may be to someone else who has similar assets to them. General each time you divorce (and I did go out with someone for a bit who had three divorces behind him and was quite well off) each time you divorce you half the assets you have if you marry people who don't earn much so it's pretty financially disastrous. If there were no mortgage on it and if the debt to ex husband were paid off you could put the house in your own children's names perhaps in due course?

Prenups are often not enforceable in English law. I would not risk one. Even if you both use solicitors and enter into them a good long while before the marriage and have total disclosure of all assets they may not be enforced so the simplest solution is not marry, just have a blessing. Now I learn we are looking at £1.6m mortgaged property and the new man putting in only £50k I can see no reason at all to remarry. It's just not fair on the existing children.

So a house worth £1.6m and the ex husband only owed £100k 0 surely surely with a very good mortgage broker on a house of that value even with an existing loan and the very low current interests rate and say 25 or 30 year term even if only interest only to start with there could be a remortgage and the ex husband bought out or even some kind of early equity release?

(JP is X if that is not obvious to those who knew me - I'm not sure it's a cautionary tale as I haven't remarried).

My mum never re-married for this reason. She is perfectly happy being in a loving relationship without the certificate. I am very grateful for her dedication to her children. I would like to think in her shoes I would do the same for mine. I would never rely on a prenup, I would just assume I'm risking half going to the new partner and ultimately his children over mine.

From what posters have said here...I don't know if you can rely on a pre nup. Of course people remarry....but I would say leaping in without even living together is a risky strategy!!

The disparity in your assets would put in you a very vulnerable position.

If I found myself in your situation, I'd be trying to raise a mortgage or other loan for the 100k, and keep paying for the house myself. If you wanted to marry and live together, could your DP not keep his home and rent it out and therefore have his asset, and not pay anything towards your mortgage. He would pay towards food and bills only while living with you. Alongside a prenup, would this protect your house?

The advice I have is that pre-nups are increasingly enforceable. Is that not of some comfort? I know there is some residual risk but there is risk in everything. HerRoyalNotness, that to me also seems the best approach but DP cannot rent his flat out (it's one of these home ownership properties) so would need to sell his flat and invest in something else. He may not agree to this. But yes, I see that as the best protection, aside from not marrying. It's surely harder for him to argue that he ha an interest in my property if he has never paid anything towards it.

Also, surely you run some risk just by living with someone and not marrying? They could also contribute to the mortgage and claim an interest? They would have to live rent/mortgage free in your house. Just don't really see how this is workable.

Whether he contributes tithe mortgage or not is irrelevant if you're married - it all becomes part of the same pot - same as a SAHM may never contribute to the mortgage but is still entitled to a share of the marital assets.

An unmarried SAHM however has no rights if the home is not in her name and she hasn't contributed. She only gains rights by demonstrating she has paid a portion of the mortgage, or for a new kitchen etc. But if she's married she has no need to demonstrate that.

You want something watertight, and not a gamble. Why play Russian roulette with the financial security of your children? A prenup is pretty much that, and you wont know until you need it the most.

The most watertight you can do is to remain unmarried.

Why do you need marriage to show commitment? I would be vary if he needed that commitment from you. I would see it as him needed the hands on my home, not my hand in marriage, but I am cynical.

Yes, it is a shame Xenia is not here. Despite being a lawyer, and taking advice, she is, as far as I am aware, paying spousal maintenance to her layabout husband, in addition to having shared the marital assets with him, despite being the residential parent to their 5 children....He swanned off into the sunset, he did!

I would like to pitch in regarding the pre nuos. It is advisable that a prenup is written months ahead of an impending nuptial, the reason for this is so the other party has time to seek their own legal advice and shoukd best practice see their own solicitor, before agreement. It should also be signed well before. The fact that a prenup has not been agreedwith less that a month to go, would most likley be unenforceable due to the other party being potentially under duress to sign in order to the nuptials to still go ahead.
So in the possibility of it not working out, in your case i would suggest that you are leaving yourself wide open in states on vunerability. Can you not put the wedding back? You really need to iron all the financials before saying I Do.

Well the only ones I know who did are now very very sorry they did and much poorer and divorced of course

Shhhhhhhhhh - Xenia is here - she's Jane!

I'm a little confused, and I'm not sure the situation you are proposing is beneficial to either you OR your DP.

You don't want to lose your house. However, if you are married, it's a JOINT asset. It's his as much as it is yours. If you don't want to share with him, then why are you marrying him?

Is there some sort of underlying resentment at the ease of his lifestyle (you said he takes it easy) versus your hard work? Because thats the sort of thing that really starts to rankle when you live together. The sort of thing you don't know, as you don't live with him.

Not only this, but your DP will sell his house, pay towards the mortgage, and help you with living costs. For which you want to ensure he gets pretty much nothing if you split.

I don't know...

could your DP not keep his home and rent it out and therefore have his asset, and not pay anything towards your mortgage. He would pay towards food and bills only while living with you. Alongside a prenup, would this protect your house?

In English law currently in this scenario both properties would form the 'marital pot' to split.

The advice I have got (from a top notch family lawyer) is that they are very likely (95%) to be enforceable in the early years of marriage, increasingly less over time, at which point I am thinking that it might be better to rely on trusts etc for my kids.

In short marriages it is sometimes the case that you take out what you put in. However, this isn't always the case. No-one can say for certain what would happen.

Trusts in certain instances can also be looked at to be split.

Not only this, but your DP will sell his house, pay towards the mortgage, and help you with living costs. For which you want to ensure he gets pretty much nothing if you split.

I agree with this. The way you are putting it across is that you expect him to sell, pay off your ex, contribute to the household but then walk away with nothing if you divorce? Not sure a court would see that as fair.

Yes, that is all wise advice. I know only about 2 or 3 cases where pre nups have been looked at and I think in half of those cases the prenup was NOT enforced so it is not the case that chances are it will work. Chances are it may not although I agree the current plan is to change the law to make them more likely to be enforceable if both sides have solicitors, they are entered into a good long while before the marriage and the most important issue both totally disclose all their existing assetrs AND the pre nup makes fair provision which is the interesting bit. It may not be fair provision for a lower earner with few assets to get very little even under a pre nup particularly after quite a few years today.

It is very different if you are not married and he does not pay towards the mortgage. I would imagine it would be rate to make a live in partner pay rent. However he could pay for all the family's food and anything that is not towards the property - no property repairs or improvements.

The big problem will be if your house price doubles to £3.2m in 10 years and you have married him he may claim £1.6m assuming all loans are paid off by then. Whereas if instead your deal is you don't marry and he buys a property he can afford and lets it out which if he has £50k will presuambly be something worth more like £200k he will not be riding on the back of your asset to get a massive equity boost at your expense.

There is a case for him paying for family food etc but no rent Now you might think he gets off scott free whilst you are paying a large mortgage but you are getting the benefit of equity increases (if there are any - we could in for 10 years even in London of property falls of course) in the property you are paying for. In other words we cannot have cakes and eat them - either you are independnet and keep all those potential massive equity gains but yourself pay off your own ex and pay your own mortgage and school fees etc in due course OR he helps out but gets a share in price rises of your house.

If he sold his property and invested in a BTL, thereby ensuring he had an investment and an income, and you raised the £100k through the bank and retained your own asset, you could live together quite happily sharing living costs (apart from respective mortgage payments) proportionately and be a lovely blended family. It's the point where you are talking about him selling his place to invest in yours (which is what paying off the ex would mean) and getting married that it gets murky.
I can't understand why you need the formality of marriage to consider yourselves a family. You aren't a romantic girl of 21 are you? So be hard headed here. You have an amazing asset which will benefit your children in their childhood and beyond so don't risk it.

Minki I know it's probably not what you want to hear but just live together. It's the marrying part that makes the lines more blurred.

You can love someone and create a life with them without marrying, as I am sure you realise.

Protect your house for your children and your future. If the house doubled and you owed him half in 20 years then you may not be in a position to buy him out. I personally don't think it would be worth the risk.

All very good points. Just to be clear, I totally accept that if DP pays anything towards the house then he gets an commensurate interest. Also, I think many posters are disregarding that there will be a pre-nup which being increasingly enforced by the courts. He will not automatically get half my house, he will get a beneficial interest in the amount he contributes, if any. I am also not sure if I have made it that clear that I am stony broke and it would make a huge difference to have someone help pay towards the mortgage. Also wanted to point out that cohabitation also triggers repayment of the charge to my ex.

Pre-nup's maybe increasingly enforced, but there is still no guarantee that it would be enforced in your case. IMO you need a cast-iron guarantee if you want to protect your kids' future.

I cannot see any reason to marry him at all. Yes you love him but loving someone is much easier when you don't live together as a blended family.

You obviously want to put all your faith in a pre nup but that is a risk.

If you are stoney broke why not sell your house, pay off your ex, rent somewhere together for a year or two and take it from there?

Your urgency to remarry completely baffles me.

I am recently divorced (but like you separated three years ago) I managed to keep the house and pay off exH with a remortgage. DP lives here but has his own property still. I would consider marrying him one day but our equities in our respective properties are almost exactly the same. In your situation I would tread with huge caution.

Why the need to marry if you are not living together? It is very odd. Living together as a blended family is very tricky and you really need to have a go and see if you can do it first.