What counts as a loan?

[SellAllMyStuff]

7 years ago - my mum and I jointly owned a flat. I was single.

I met H, got married, had one kid, then got pregnant again (with twins). I sold the flat to buy a jointly owned family home with H.

£60k of the equity was my mothers. She wrote me an email at this time saying "please keep the £60k. you will have three children under 2. childcare is going to be enormously expensive. please keep the money and pay me back when you can afford to in the future"

(this is exact wording. i've checked)

All the equity in our familiy house came from the sale of that flat, including the £60k.

I am trying to leave H.

We are going to sell our family home in the next 6 months.

Can I legally say that when we sell our house - I want to transfer £60k back to my mother, therefore leaving less to split between me and DH.

All I have is that email. And a paper trail to show that the £60k came from my mother to buy the flat, including a proper contract to say i had to pay her back on sale of the flat, but then she sent the email saying to keep it until "some point in the future".

Any advice?

You need proper legal advice.

Was the property you bought with your DH mortgaged? If so, did you or your mother have to submit any confirmation at the time that the 60k was a gift not a loan? That may be an issue. It's a pretty standard requirement from a mortgage company if a third party is providing part of the deposit.

What communication has there been in the 7 years since she lent/gave you the money? Have you got anything that would evidence that your DH accepted it as a loan.

From the email it was intended as a loan, but your DH may be able to provide evidence from your mother saying it was a gift. And it seems very likely that your mother sent you the email BEFORE you entered into the mortgage (as otherwise you would not have known you had the funds to spend). That's not necessarily the end of the world, but it does make it messy.

Yes - the property is mortgaged.

When I sold the flat - I was married but DH was very much not involved in the process. I owned the flat only in my own name and DH found it all 'too stressful'. So honestly I don't think he even knows how much equity is in the house or how much is mortgage. He just got told how much we could afford and signed his name.

He may remember that I told him that we had £60k more due to my mum saying to 'keep her part of the equity'.

Very sadly we lost one of our twins towards the end of the pregnancy. that money was given on basis of the 'expenses of having three such young children' and then the money was never bought up again when i lost one of the boys. i just don't think my mum would have wanted to mention it.

and now years later my relationship has broken down and i really want to protect my mums money. i understand my own equity/money will be split but if i can get my mums money back that would be amazing

but i don't know if H think he has a loan to my mum. he knows my mums money helped me buy a flat, and then in turn the house, but we have never discussed it as a formal loan.

Three follow up questions (and you really do need proper legal advice).

(1) Does your mum actually want the money back? Would she want it back if you weren't splitting? Does she know you're splitting? If not, are you able to have a discussion with her about the money and see what she says (I wouldn't do this if there is a risk that she would whole heartedly assure you she no longer wants it back!). Basically - is this really an amount owed to your mum?

(2) What will happen to the 60k if it is treated as a loan? Will it go to your mum? What will she then do with it? (eg would she actually then give it back to you in some way - check with a proper family lawyer but that might risk your husband being able to reopen the financial settlement)

(3) How aware is your husband that a split is on the cards, and how badly broken is your relationship. What are the chances of getting him to agree in writing (eg over email/WhatsApp) that it is a loan? Eg (if true) "I was talking to mum about the money she loaned us when we bought the house. We need to start thinking about how we're going to pay this back. Do you think we can tell her we'll pay XXX a month to at least seem to be trying?". Him replying "can we put her off another year?" is an acknowledgment that an amount is owed.

[Note all of this is the type of advice which would get a well deserved round of "he's a complete arsehole" posts if a husband did it to his wife but I would say the same thing to a man in the same scenario.]