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Non married couple splitting up. Sell house.

including wills and probate
raybarrow
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Non married couple splitting up. Sell house.

#397625

Postby raybarrow » March 21st, 2021, 11:51 am

Hi Folks,

Sadly a non-married couple, we know, with two top end primary school children have split up. She is mid 40s and lives in the house with the two daughters (they are both their children). The split appears to be 'just about amicable' but he has not been the kindest of partners and has left her several times before, but this is the end now. He wants to sell the house so he can have his share of the money, not unreasonable. The mortgage is in joint names which if remember rightly, from when we had a mortgage, meant they are jointly and severally liable. While she has a job, she couldn't afford to 'buy him out' or take on the mortgage on her own, they had an extension done a few years ago.

Does the fact that she will have the two young daughters give her any sort of leverage on the house selling side of things? I'm just mindful that when my dad went into a care home, they couldn't take his house into consideration financially as my 60+ year old brother was still living there.

She does have friend helping her, doesn't want to lose the house. I appreciate this is very complex and a simple answer is unlikely but any pointers as what to do would be helpful.

Cheers,
Ray.

Clitheroekid
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Re: Non married couple splitting up. Sell house.

#397740

Postby Clitheroekid » March 21st, 2021, 8:01 pm

Where couples are unmarried the question of what happens to a jointly owned house is dealt with under the Trusts of Land and Appointment of Trustees Act 1996. This is because by definition joint ownership of any land creates a legal trust.

As one of the joint owners the father is entitled to apply to the Court for an order that the house must be sold. However, the Court has discretion to order a sale, and in doing so must consider:

• the intentions of the persons who created the trust - in this case the two of them.
• the purposes for which the property subject to the trust is held.
• the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home.
• the interests of any secured creditor or any beneficiary.

Section 14 (2) of the Act provides that, on hearing an application for an order, the Court may make such order in relation to the trust as it thinks fit, having regard to these factors.

Because one of the factors the Court must consider when exercising its discretion to order a sale of a property is the welfare of any minor who occupies the house they could order, for example, that the house must not be sold until the youngest child has reached the age of 18.

However, each case turns on its own individual facts, and the Court has to balance the interests of all concerned. It's quite possible that an order for sale would be granted, if the father was otherwise unable to rehouse himself. In that event the mother would probably be ordered to pay his legal costs, which would be substantial.

Some important considerations would be how much equity there is in the house, whether or not the mother would be able to maintain the mortgage payments and their respective borrowing capacities. If the combination of the mother's equity share and her borrowing capacity would enable her to buy another house for herself and the children, it's likely that the Court would order a sale of the property.

As always in such situations, she needs to obtain legal advice specific to her situation.

raybarrow
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Re: Non married couple splitting up. Sell house.

#397855

Postby raybarrow » March 22nd, 2021, 9:29 am

Hi Clithero Kid,

Thanks for that 'general' info. Life is never simple when it goes wrong. The friend who is helping her is sensible but not a legal expert in any shape or form. The bottom line says it all. She needs to get proper legal advice.

Thanks again,
Ray.


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