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House Question

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dailysysadmin

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Myself and my ex partner were together for 13 years, 2 young kids.

I purchased the home myself 7 years ago, my name on the mortgage, I solely paid the mortgage, the deposit and everything else was also in my name.

We are not married.

We are having quite a difficult separation and my ex partner now has a council house to live in, I am still in the original house.

We've been separated about 3 months, she is now making threats about forcing me to sell the house and give her half the value.

From what I can gather online and a brief conversation with a solicitor I don't believe she can do this and I am not obligated to do so.

After working everything out it doesn't add up well if I am forced to sell and I am admittedly worried about the situation, has anyone been in a similar one?

Let me know if any additional info is needed.

Thanks
 
I'll need some more information before I can advise:

1) Were you married?

2) Is your ex's name on the mortgage?

3) Did your ex ever contribute to the payment of the mortgage?

4) How did your ex contribute to joint finances?

5) Were there ever any conversations that she can prove where you discussed ownership of the house that included her?
 
1)No
2)No
3)No
4)Paid bills from my account, when the money ran out at the end of the month we used hers, occasionally she would transfer me money to my account which I would then use.
5) The only conversation is when we originally separated and I said via text we could sell the house and split 50/50, she didn't agree to that (face to face). x months later it is far less financially viable to sell the house and go 50/50.

5.1 as well as around 7k in legal costs ( solicitor), I owe an additional 4k to my family for upkeep of house and a car.
5.2 Previously I owned a house mortgage free, sold and used that for the deposit.
5.3 all of the debt around 30k is in my name only.


thankyou.
 
The problem you have got is that when you told her she could have 50% of the house by text message, you might have opened the door to a constructive trust to a share of the property in her favour. You essentially admitted via text message that you agreed she was due a share of the equity. Arguably, she might have been entitled to a constructive trust in the property anyway because she shared household bills with you but this would have been much harder argument to prove.

For a constructive trust to arise there has to be a common intention (unfortunately the text message is strong evidence of that) but the non-owner also has to prove that they have acted to their detriment (potentially the way family finances were split might indicate that but because you have paid the lion's share it would then go against her getting as much as 50%).

As you came into the relationship with a mortgage free property it would be very hard for her to make any claim on 50% but a court might say she is due something. I think if I were you the way I would frame it would be to say you understood you had to provide for your children under the Children Act 1989 and the offer of equity was not because of a common intention to share the house but rather was an offer of a lump sum that you have since had to withdraw because you cannot afford it.

Either way, you really need decent legal advice on this one.
 
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An important question is how much time do the children spend with you?
Have either of you applied for child arrangements?

If they spend a lot of time with dad could it be argued that to keep stability for the kids it's in their interests for dad to keep the house?
 
The question of how much time the children spend with each parent is not as relevant because they aren't married (and his ex is already suitably housed elsewhere, which would restrict any Children Act application).

The issue is going to be whether his ex has a constructive trust in the property and if so how much.
 
Unknown01 said:
The problem you have got is that when you told her she could have 50% of the house by text message, you might have opened the door to a constructive trust to a share of the property in her favour. You essentially admitted via text message that you agreed she was due a share of the equity. Arguably, she might have been entitled to a constructive trust in the property anyway because she shared household bills with you but this would have been much harder argument to prove.

For a constructive trust to arise there has to be a common intention (unfortunately the text message is strong evidence of that) but the non-owner also has to prove that they have acted to their detriment (potentially the way family finances were split might indicate that but because you have paid the lion's share it would then go against her getting as much as 50%).

As you came into the relationship with a mortgage free property it would be very hard for her to make any claim on 50% but a court might say she is due something. I think if I were you the way I would frame it would be to say you understood you had to provide for your children under the Children Act 1989 and the offer of equity was not because of a common intention to share the house but rather was an offer of a lump sum that you have since had to withdraw because you cannot afford it.

Either way, you really need decent legal advice on this one.
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Understood, I will get some further advice then.

It was a genuine offer at the time but 6 months later, the maths doesn't make sense. Not that it might matter to a court but in reality, if I could sell the house for its potential value, pay off all debt and then split the rest we'd each end up with around 7-10k.

However for myself I am about 8k into a legal case for the kids with a further 1.5 due around december24. So I would be houseless and have nothing to show for it, and then obviously have to worry about how I would house the kids.

We current have an interim order than splits the time 3 days each and the seventh day to be decided mutually.

I am after 50/50, she does not want that.

I appreciate your reply
 
The problem you've got is not that an offer has been made but potentially an admission has been made that there was a common intention to share ownership of the house. A lot of the detail you include here might be relevant to a divorce or a Children Act case if one party was trying to stay in a jointly owned home until a future date (e.g. youngest turning 18) but these facts aren't relevant to the question of whether a constructive trust has arisen that gives her a share of the house.

Without the constructive trust issue, you wouldn't have any problem because she has already become suitably housed elsewhere. For completeness, I could also tell you that had she not become suitably housed the best she could have hoped for would have been use of the property until the youngest turned 18 paying you an occupational rent she could afford and then turning 100% of the property back to you.
 
Oneofmany said:
@Unknown01 could I ask a question? can you give us and overview of constructive trust and common intention please??
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I won't give you the full blow by blow explanation from an academic trust law perspective but I can give you some idea how it works when dividing equity in a property.

First though, I must stress this is how ownership of a property is divided when two (or more) people who are not married decide they no longer want to live together and at least one owner wants the property sold to get their share. When assets are divided and the parties are married, the MCA 1973 applies and when an unmarried couple with children split up the Children Act 1989 may apply as to who may use the property until the children reach majority.

Normally, when a couple buys a house together and both are on the proprietorship register, it's relatively simple. Either the property is held as a joint tenancy (50% each on sale) or tenants in common (whatever the agreed split was when purchased).

Constructive trusts arise where only one party is on the mortgage and the proprietorship register but someone not so named claims that there was a common intention to share the property and has taken actions to their detriment on the basis of that common intention. Proving common intention tends to be easier by actions than the existence of any agreement. For example, a court might infer if someone is paying an amount called "mortgage" on a bank statement for years that they did so thinking they owned a share in the property. We're mostly interested in separating couples here, so it might be where one person owns the house but the other pays towards the mortgage because they have 1) been told by the other that they have an interest in the property and 2) have to their detriment contributed to the purchase. Typically they will get back an amount that reflects what they paid in. Another good example would be where someone owns a house and the other who is not on the title does extensive renovations at their own expense.

Outside of couples, you might also find them arising where parents have loaned money (it's quite a good way to kill off a Mesher Order if the non-resident's parents can claim a constructive trust in the property, it only doesn't apply between a married couple) or where friends have come together to buy property but only four people can be named on the title. Unfortunately this doesn't apply between two divorcing people, where courts have wide discretion to award all of the property to one person no matter who paid for it.

Also, just because you own a house doesn't necessarily mean you can use it. Under the Children's Act, a non-owning ex can use the property to house the children until they reach majority. It's quite rarely used but does happen. However, unlike Mesher Orders, the owner does at least get 100% of the property back at the end and the non-owner may be expected to pay something towards the property's use.
 
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