Deed of trust when married

[Mercier1]

Hi everyone.
Tomorrow I’ll be exchanging on a house my husband and I are buying. We currently live in his house he bought six years ago with parental help for the deposit. We moved in together when he bought it and I’ve always contributed to the mortgage and bills. We decided on a ratio in line with who earned more. We were soon engaged, got married, have a baby and another on the way.

We’ve decided to move on and the next house is in both names. I will be contributing 10k or so to the purchase but obviously my husband has a lot more equity now and more cash from his parents (he says 80K) between both lump sums they have gifted him/us.

Tonight final paperwork is coming across and lawyer drops in a letter about if we want to draw up a deed of trust to protect my husbands investment in case anything went wrong. I don’t know how I feel about this. We are a married couple and I’m about to give birth to his second child. That entails a loss of earnings/mat leave etc. In the future I imagine I will have money to put into the house, an inheritance maybe one day of my own.

I feel weird signing a deed of trust as a married woman. But then I guess it’s a huge sum on money and we have been going through a difficult time lately so I can imagine what my husbands thoughts might be tonight.

We exchange tomorrow so it’s prob too late but anyone got experience or insight for me?

Of course he should protect his investment. If you had similar I am sure MNers would be recommending you ringfence it. They think though that when it's the man's money it is immediately 'family' money and therefore yours to have if you split up. It sounds like he is being very sensible but I'd recommend you both get proper legal advice to ensure you are doing this the most efficient way.

A deed of trust is not the same as a pre-nup and is legally binding. It sets out the shares in which you hold the property (or a way of calculating them).
It is normal for a conveyancer to mention this, but it is up to the purchasers to decide whether to go ahead, and you should get independent legal advice (i.e. a different solicitor to the one you are both using) before signing one. Your conveyancer should have explained the difference between holding property as Joint Tenants vs Tenants in Common. If not, ask them.

I think you imply being a SAHM is a selfish decision when you write She wants to be sahm, she also wanted the kids. This reads like OP is benefitting more than her DH from these things. Assuming that they both want the children and are happy for her to be a SAHM then these things are mutually beneficial to both and provide the same value to each person. So he benefits from having kids, having them brought up by a SAHM, not paying childcare costs AND all the long term financial benefits that staying in work bestows on him as an individual. Him taking the WOHP role may well mean that he financially supports OP and the family whilst married but if the relationship was to break down then he would be in a far superior position. This is the reality for most families with this setup so whilst saying both contributions are equally important, it is also important to acknowledge that one contribution is likely to have a greater financial impact for one party in the long term.

OP is right to think that a divorce settlement would be unlikely to redress this imbalance completely, so she should be cautious to sign the trust agreement as this will allow her DH to ring fence his "investment" in the family whilst she has no means to secure her investment as a SAHM.

Apologies above post was to @Notacluewhatthisis

Hi just reading the comments. A few points
I am not a SAHM I work p/t the loss of earning bit refers to 2x maternity leave periods and an additional day a week I care for my son. This might change with the second.
We earn around the same him prob 10% more than me.
We use a joint account for all our spending including personal stuff not just bills
This has not come from my husband it was a letter from the solicitor, I sincerely doubt anyone has prompted the solicitor and I assume it’s standard practice.
Hope that clarifies.

I understand the points raised about him wanting to protect his parents investment for sure. I don’t blame him. However what would happen on the future if I invest significant amounts into the home? Do we keep drawing up new agreements? It doesn’t feel like it’s how married people go about things. I won’t sign it without my own independent legal advise. But can it be done retrospectively? We exchange today.

My husbands fear is that if we divorced I would get the house as I am the mother, and he would have nothing to show for his parents investment and be living in a squalid shared house somewhere I think. We’ve always shared our money and I’m working SO hard to secure this 10K at times when I have earned more I saved this for my maternity leave, and our wedding. I just feel this deed of trust doesn’t recognise these aspects of our financial history but what do I know.

Don't sign anything without proper legal advice, after full financial disclosure. That means separate advice for you and DH.
A lot of the posters on here are not lawyers and are giving you opinion, not fact.
You need to know if it would be enforceable in the event of divorce, in particular - I suspect it might be.
If you can't get independent legal advice on this before exchanging, then don't sign.

I’m with notaclue on this. Becoming a SAHM or working part time is not an automatic or passive event that falls upon a mother. It is a choice. There may be many reasons for that choice but on making it you have the right to discuss financial consequences and discuss how these might be mitigated E.g. I think I now have rights over your parents gift.

Assuming anything is always a mistake. Discuss it. Now is the time to identify whether you feel the same.

I have just given my ds a similar amount to buy his first home with his dp, who he will be marrying next year. I have suggested that he have a Deed of Trust drawn up. It is a gift to my child, a contribution towards a secure future for him. If he ignores my advice then that's fine, it is a gift and he can do what he likes with it. But I think it would be prudent for him to ringfence it, should they ever separate.

He has left it very late in the day to spring this on you. It is certainly something you will want to think about and seek advice about, but I don't think it's an unreasonable request at all.

And if you feel financially disadvantaged by giving up work to care for your child, don't give up work to care for your child.

Being a sahm is a choice made by both parents.
In becoming a sahm a large amount of financial risk is taken on. The working partner needs to know that they have an obligation (and indeed the court will ensure this) to protect the sahp on divorce.

In your situation op, and subject to legal advice and your dp wanting this, I'd agree to a trust to protect the parents' share. But everything else would be split according to normal divorce laws. If you get an inheritance and put it into the house too then I'd protect it in the same way.
Obviously setting these trusts up and sorting them out at the end will cost money. It's up to you both to consider if it's worth it.
And I wouldn't be bounced into it today. If legal advice is not to do it then you'd be stupid to so it and your dp needs to respect that as the position of sahm can be a vulnerable one.

I didn’t give up work to look after my child, I work three days a week. Would you feel the same about giving money to your son after he married this woman and she had two children? Also he didn’t spring this on me that was the lawyer.

And if you feel financially disadvantaged by giving up work to care for your child, don't give up work to care for your child.

Practically all sahps are financially disadvantaged. However there are many good reasons to not go back to work.
I've been hugely financially disadvantaged but there is no way I would make a different choice.

Id seek your own independent legal advice so you're as fully informed as you can be . It's not unreasonable for him to want to protect his assets but I can understand why you'd feel undermined by this . However if the boot was in the other foot id wish to protect my assets too although would be happy to share assets and equity created after marriage .

In divorce, inheritances are often viewed as the assets of a sole party, unless they have already been spent. I would presume gifts would be the same, especially if accompanied by a deed of gift. So yes, I believe a married couple can keep certain assets separate. I'm not a lawyer though.

Go back to what IAmNotLikeThem said:

"If you are planning on growing old together it doesn't matter. If you are anticipating a less secure future then again it probably doesn't matter. As spouses if you ever had a difficult divorce, arbitration or the Courts would start with everything owned 50/50. If you have kids their needs would be prioritised. At this stage I don't think it matters"

If it came to a split would the Deed of Trust trump the legalities of joint property once married?

Incidentally what does your DH think? Personally if I was the one who had put the equity in in the first place I would tell the solicitor (or whoever suggested this) to f&*k off, I vowed 'all my worldly goods with thee I share' and that's what I intend to honour.

Bumpitybumper I said she 'also'wanted the kids. As in aswell as him. Because you were talking about him choosing kids and him benefiting from her being a sahm/working part time. She is also benefiting.

I get the loss of earning power. But if you attach monetary value to bringing up you own kids, you have to attach monetary value to the person bringing in more money and working more hours.

No one ever says a dad is providing free
Child care are when he watches the kids.

I get the OP wanting the fact that her career is slower, recognising in the event of divorce. Even though that's a choice she made, knowing the impact. But no, I don't agree providing free childcare should be included in a divorce, because the other persons will be contributing more in that situation too. Just in a different way.

In the ops case, I can not believe this hasn't been discussed before. Especially since the money comes from 3rd party. The dh should have been clear his parents investment would always been protected if that's what he and the parents wanted. The op shouldn't have assumed she would automatically get 50% of the gift from his parents. Especially when they were not married at the time this happened.

If I gifted a large amount of money, to my child, I would want it protecting. But that would have been made clear and if he had valid objection, I wouldn't insist on it.

Op since you earn decently and work almost full time, there's a good chance you wouldn't get to keep the all of the house. You may not even be able to stay in it till the kids are 18. That's not a given anymore.

This isn't just about you and your husbands financial contribution to the marriage. And I think that's where the problem is. This is also about a 3rd parties investment.

If you invest more in the future, yes you can have another deed drawn up. It's not like something you will be doing every year. Only his initial investment should be protected, and your 10k and then equity after that should be split.

Again, I am not saying you should sign. That's your choice.

You could do it after, however if I wanted my investment protecting I wouldn't exchange until I sorted this issue.

When my DH and I bought our house, we weren't married and I was coming from my parents home whilst he had sold his house so had the money for deposit etc. I paid mortgage but we had a deed drawn up so that he would get more out if we sold and split up. Now we are married with 2 children and have just drawn up our wills. We have also changed the feed to 50/50 as we are now committed and have children's future to consider. I am now a SAHM so do not contribute to the household at all! My DH is an estate agent so has a handle on these things. If you are settled and happy then I would suggest 50/50 is fair and the decent thing to do.

Is he insisting on it? I contributed £150k more to our house together but I would not have dreamed for my husband to have a lesser share, he earns 4 times what I do, it works out fair in the long term

I would be surprised if the solicitors had suggested this. It either comes from your DH or your PIL. If you feel uncomfortable with a deed, maybe you should look to increase your mortgage on the marital home and either repay the PIL or set up a trust for your children with the money. I think this is an issue we may face in the future. DS's girlfriend knows we are considering gifting him a substantial amount to buy a place in the future and she has raised this with us. I think it is a tricky issue. We came into marriage with nothing and have built up our life independently. I am also mindful of our marriage vows - with all my worldly goods I thee endow ( but in your case the worldly goods being discussed come from his parents). Difficult.

Conveyancer is just doing their job as the equity being brought in is so uneven. Most house purchases wouldn't have this so obviously a solicitor wouldn't feel they had to suggest this in those cases. If you are happy that you both consider the 90k investment as a joint asset then you don't need a deed of trust.

If you divorced, even if you remained in the house he wouldn't have nothing. He'd have two children who were properly housed! He wouldn't be losong ownership of the house either - usual scenario is that one partner buys out the other's share, or house is sold or rp remains intil children turn 18 and then house is sold. A judge isn't just going to give you his share outright.
I would be agreeable to protecting his parents' initial gift, but any lump sum I then put in would also have to be protected.
I agree it's no way for a marriage to work, not when you share children and dont have step children to factor in/protect.

I signed one of these as second marriage he has kids and all the house deposit was his and his parents.

It seemed fair to me as I have my own house I rent out. His will leaves me a percentage of the house.

In your circumstances I can see why he’s asking for this. Get your own advice.

I wouldn't sign it, you give up a lot to have children, and often after a divorce you end up struggling to make ends meet while he has to contribute a tiny portion of what it costs to raise kids. It's a choice to have kids, and it's one you have both made, and you need to protect the kids. I think you should refuse to sign it, I don't think there is much he can do if you don't sign it. I would at least get a lawyer to look at it first. Maybe take your time and it will be too late.

What does your husband say about your loss of earnings that HE is benefitting from? Can you calculate loss of earnings and incorporate this into the ‘deal’?