Tennants in common

[Needafriend2019]

We bought our house outright 14 months ago after I inherited some money oh wanted it to be 50/50 But finally agreed on 70/30. I'm really unhappy and want him to leave and me stay in the house till ds is 18 (another 9 years) I think he will want me to sell up now will it be a 70/30 split or does everything start at 50/50?

Are you married.

Yes 10 years this week

In that case the courts will want to see a fair split of the assets. That doesn't necessarily mean 50/50. What a fair split looks like depends on a range of factors. You need to see a solicitor.

Is it a tenants in common mortgage or joint mortgage? I'm confused? Also is it 70/30 in favour of your husband or you?
If it's 70% in favour of you why can't you just remortgage and pay him off his 30% since you said you had bought the house outright?

Your child is school age so presumably you work and the mortgage payment wouldn't be that high given the equity you hold in the property

Should say If it's tenants in common then your husband will only be entitled to the share you had agreed on - starting point is not 50/50

Should say If it's tenants in common then your husband will only be entitled to the share you had agreed on - starting point is not 50/50

This is wrong. The OP's husband will be entitled to a fair share of the assets. That will not necessarily be 50% of the assets but he may be entitled to more than 30% of the house. Equally, the OP may be entitled to more than 70% of the house.

Thanks @prh47bridge - I have T-I-C mortgage with husband because I put a lot more into the house than he did - 75% of the deposit and I pay 75% of the mortgage payments so that was why solicitor advised it and I'm sure he advised that was to protect my higher stake and hubbie wouldn't be entitled to take 1/2 the house that way? If that's wrong definitely need to look at a post nup!

I agree with mariethecat. The whole point of tenants in common is to protect your separate investments. Have you checked your title information documents at the Land Registry (google it, costs £3 to obtain)?

I didn't think you could have a tenants in common mortgage though? I thought it was a joint liability however you decide to split he actual payments.

You need to seek advise from a family solicitor who can advise on financial settlements in divorces/ separations.

The whole point of tenants in common is to protect your separate investments

In a divorce a declaration of trust setting out the proportions in which the property is owned is a relevant consideration for the courts but, just as with a pre-nup or post-nup, it is not binding on the courts. If the courts conclude that the agreement is unfair they will order a different split.

I didn't think you could have a tenants in common mortgage though? I thought it was a joint liability however you decide to split he actual payments

Regardless of how the property is owned, everyone who has entered into the mortgage is liable for the whole amount.

I think the courts also take into consideration the original intention of the parties - my husband was encouraged to seek independent legal advice before agreeing to the tenancy in common

I also think a court would take a dim view of someone who entered into a TIC with full knowledge and then trying to argue they are entitled to more

It is not correct that tenants in common protects your share if you are married so follow with Prh says above. which is correct. In an English divorce it will depend on the situation. Eg tenants in common 90/10 in favour of the highest earner might end up meaning highest earner only gets even 10% in some cases. It willd epend on things like what you both earn, if the house is much bigger than is needed and could be sold so each are housed after the divorce and that kind of thing. however if you are the lower earner it is certainly possible the 30% might be respected possibly with realsing the 30% of your husband only to happen once youngest child is 18 or you remarry or cohabit unless you can afford to buy out husband now.

Best to see a solicitor even if just for a one hour paid appointment however.

We don't have a mortgage we paid cash for the house after I inherited some money.

In England - Scotiland differs - even inherited money is considered in a split and it doesn't matter whose name assets are in. The starting point is 50% each but if one person hardly earns anything or cannot work then they might well get more than 50% plus maintenance.

Whether you hold as JT or TinC will really only have an effect if one of you dies, or has to go in to a nursing home, or is made bankrupt. The divorce court isn't that interested in how you choose to hold it in trust.

What about gifting the property in a declaration of trust to a family member to get rid of the asset and be out of the marital pot to share. How does the court view that ?

The court would view that as a transaction intended to prevent or reduce financial relief and would set aside the gift. Matrimonial Causes Act 1973 section 37.