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What are we each entitled to in our divorce settlement?

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Joint Benificial Trustee of other property

  • alexanda
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14 Mar 08 #16779 by alexanda
Topic started by alexanda
I would be grateful if someone can give some advice/help here please?

I am in the process of divorce and have declared my interest on my form E in my parents home of which my sister and I are joint beneficial trustees along with my parents.

I was trustee before we met and married so brought this into the marriage(13years).

If any of the trustees die, their share is absorbed by the remaining. However no one trustee can sell/mortgage etc without consent of others. The share cannot be passed on in any will or covenant so our hands are tied.

My stbxw is claiming that my potential inhertance means that she gets a bigger slice of the current pot as one day I will benefit. However the big question is when ?

Also if events take their course and both parents die and my sister and I then become the remaining trustees, I need to convince my sister to either buy me out or agree to sell otherwise I cant realise the value of the asset.

Does anyone have a good legal perspective on this or is there any case law that I can refer to as it is creating a big sticking point in discussions.

Thanks

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14 Mar 08 #16784 by dukey
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Hello Alexanda

there is a dedaled guide on trustees interest in martrimonial homes at www.bllaw.co.uk in pdf format

dukey

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14 Mar 08 #16786 by alexanda
Reply from alexanda
Thanks dukey

I cant find the sheet. Which section is it under ?

Alexanda

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14 Mar 08 #16787 by alexanda
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Dukey

I have found it now but uts more about matrimonial hopmes and inslovency/bankruptcy.

My issue is not about the matrimonial home but about me being a joint beneficial trustee of my parents home. My wife is aying I will benefit/iherit but my argument is that right now I cant reaklsie that assett or get a mortgage/loan on the basis of it so it is non real;isible and cant be counted as cash. Indeed if I die no-one but the trustees would get the joint benefit of it. My stbx would not be entitled to any claim.
Can ayone help me here ? please

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14 Mar 08 #16790 by dukey
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hello

i understood the question the usual line of attack is to try and proove the trust is a sham and that the assets still belong to the settlor,(i assume you are)

trustee who fails to demonstrate their indipendance in the administration of the trust and its asset (parents home) may leave the trust open to dispute.

However this trust pre-dates your marriage and no one trustee can change the trust both factors are in your favour.

Is there a "letter of favour" with the trust?

I tthink you should seek legal advice in this matter all i have said is only my opinion

dukey

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15 Mar 08 #16834 by alexanda
Reply from alexanda
Got to give a big thanks to Mikey 100468, Dukey and atilladahun for all giving me assist on this.
I have found this on familylawweek.co.uk which I think is is going to be a big help.

www.familylawweek.co.uk/library.asp?i=688


Lots of examples but :
In conclusion:

• Inherited wealth is in a different category to other matrimonial assets
• Where it still exists the recipient should be allowed to keep it and the other has a weaker claim to it
• It is one of the circumstances of the case and should be regarded as part of the recipient party's contribution to the marriage
• It is not something that is quarantined
• If the other party's needs cannot be met without recourse to it the fact that it is inherited will carry little weight
• How the Court takes into account an inherited asset will depend upon the nature and value of the property, how and when it was acquired (see P v P (Inherited Property))
• Whether an inherited asset that had been kept separate and apart during the marriage should be taken into account is a matter of some controversy. It is submitted that such an asset ought to be taken into account but that the Court will then be primarily concerned with ensuring that the other party's reasonable needs are met rather than in attempting overall equality of distribution of matrimonial and inherited assets
• The Court should, it is submitted, give a more generous interpretation to "reasonable needs" the larger the overall asset base (including inheritances) is.
• If the inheritance is prospective whether it can be regarded as a resource that is likely to be available in the foreseeable future will depend upon how certain it is that a party to the marriage is going to inherit and how soon that inheritance will become available.
• With prospective inheritances that fall within Section 25(2)(a) of the 1973 Act the Court can either make an adjustment by way of increased lump sum to the other party to take account of this if there are assets available or, if justice requires it, it can exercise its discretionary jurisdiction to order an adjournment.

cheers

alexanda:silly:

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