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Legal matters

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Wills if people separate but do not divorce

8 replies

Thehouseofmarvels · 11/12/2020 00:37

Someone I know has an elderly mother and a stepfather who are married but separated for decades. I explained to this person that if their mother died her husband who is the father of their siblings, still could inherit despite the separation. I explained that their mothers suggestion that they and their siblings could divide her assets equally amongst themselves when she died was not legally watertight. They told their mother this and she said she'd write a will. There is also the possibility of this woman receiving an inheritance in the future ( think childless siblings). I just had a nasty thought that I'd given bad advice as I'd imagine legally speaking everything she has is automatically marriage assets and half her husband's? Can you write a will leaving nothing to a husband ? The wife still lives in the marital home. It was bought early eighties from the council (right to buy) with a with a massive discount for a pittance. Largish family home in London area so has increased exponentially in value. Both spouses are legal owners of the house but the husband barely contributed then did a runner decades ago so she brought up the kids alone. He left her with the house so I'm guessing she thought what was the point in going through the horrific stress of divorcing an abuser whilst struggling with several small children. I dont know why did did not ever come after the house but maybe he had other assets that made a divorce unattractive.

OP posts:
Thehouseofmarvels · 11/12/2020 00:44

Forgot to mention, the husband could potentially have married again, not in a legal uk sense but he is from a religion where it is acceptable to have more than one wife. So he could have married a second wife and she'd have been seen as a valid wife by his relatives/ community. So he may have marital assets with two women.

OP posts:
FindHungrySamurai · 11/12/2020 00:46

Mother needs to take legal advice and make a will now. Ideally yesterday.
Yes you can disinherit a spouse from whom you’ve been separated for decades. If they’d been cohabiting and she’d been supporting him it would be messier, but in her situation it’s fine assuming she’s in England.

The other key problem is the house. Is it owned as joint tenants or tenants in common? (rhetorical question, I’m sure you don’t know).
If joint tenants then he would get the whole house when she dies regardless of the will. If TIC then she can will her half but his half is still his, an unavoidable can of worms unfortunately. Severing the joint tenancy if applicable is vital - it’s very simple to do.

AnnnaBananna · 11/12/2020 00:47

You can leave your assets to whoever you want. The husband could contest the will but is unlikely to succeed if they’ve been separated for decades. He cannot legally remarry so any second marriage would be treated as non existent.

Thehouseofmarvels · 11/12/2020 07:51

The person I was speaking to never owned a property themselves so may not know about those terms or the importance of them, but I'll suggest they look into it.

This problem did make a thought pop into my head. In cases where a couple have been separated for a huge amount of time, if one of them ever wanted divorce how on earth would things be divided? I mean hypothetically, I dont think any elderly people would want the stress of divorce if they were happy being separated. Let's say the husband wherever he is has done very well financially. I wonder if a judge would say he could keep everything he had earned since he did a runner, because the wife had had no input, so not enabled him to earn or contributed financially? Or if everything they both owned was still seen as marital assets like was I thinking it might be if they wrote wills. It would surprise me if this bloke had been single for the last 30 odd years. Some other woman may have facilitated his career if you see what I mean. Maybe a question only a solicitor can answer but interesting I think.

OP posts:
AnnnaBananna · 11/12/2020 10:27

Depends if the spouse decides to argue I suppose. If they both agree that they’ve already split their assets and want nothing from each other then it’s easy.

prh47bridge · 12/12/2020 09:22

In cases where a couple have been separated for a huge amount of time, if one of them ever wanted divorce how on earth would things be divided

Everything would go into the pot. The priority is meeting both party's reasonable needs. If the only way this can be achieved is to dip into assets he has acquired post-separation the courts would do that. However, if her reasonable needs can be met without dipping into those assets and she has not in any way contributed to the acquisition of those assets (e.g. by supporting his career when they were married), the courts would leave them alone.

From your OP, the main concern is the house as you say that is in joint names. If they are joint tenants, it will automatically become his when she dies. If they are tenants in common, 50% of the house will become his with the rest going into her estate. Ideally, she should get the house transferred into her sole name, but that will involve his agreement. At a minimum, if they are joint tenants she should sever the joint tenancy. She can do that without involving him at all.

Thehouseofmarvels · 12/12/2020 22:46

Super useful info guys and interesting. Will mention it to the person in question when I next see them. They were also saying that their mother switched to an interest only mortgage many years ago. Less than 50k on mortgage but needs to be repaid in February. She was planning to pay it off by inheritance from her mother which never materialized. Think dementia and care home. The mother's current plan is for her children to bail her out, one in particular is in the process of divorcing someone wealthy and will potentially get a large settlement. Someone mentioned that she could find the husband and ask him to sign over the house, this would be great but I would not think he'd want to loose half a house and I can't imagine this lady would want to speak to an abusive ex. Tricky one.

OP posts:
SuitedandBooted · 18/12/2020 21:07

Before she does anything, she needs to find the husband, - he may have died. If she really has no idea where/how/ he is, I would look into hiring a private investigator, and get them to search for him discreetly and go from there.

As you say, he co-owns the house. I doubt he has forgotten that, or is totally unaware of the value a London property has. If she does nothing, things could get very messy. He is still her husband. As a starting point, your friend or her mother (or anyone!) can easily check how a house is held by checking the Land Registry. It costs £3.

www.gov.uk/search-property-information-land-registry

This explains how to understand the info:

mindatrest.co.uk/blog/how-to-tell-if-property-is-owned-as-tenants-in-common/

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