Hi, I am hoping someone can clarify this as I have looked to find a case similar and can't.
I owned a property for 9 years prior to meeting my STBX - after 2 years together, we had already got engaged and decided to move in together and buy a house between us.
I paid the entire £40K+ deposit on the property whilst she contributed nothing as she had no savings nor a house to sell. At the time we signed a Declaration of Trust holding the property as Tenants in Common with me owning 62% and her 38%. Like I say, we were engaged to be married at this stage prior to buying the house together.
We were married some 4 years later and now 4 further years on we have decided to divorce. I am now finding the situation where her and her solicitor are trying to claim not only half of the equity in the house we are now selling as part of the divorce, but also half of my savings to which she has never contributed. We are an unusual married couple in that we kept separate bank accounts - this was actually her insistence as for much of the relationship she earnt a far higher salary than me. It is only in the last year or so, that I have caught up and started to be sensible and put some money away from my own Salary.
Her and her solicitor's argument is that the Declaration of Trust that she willingly signed knowing we were to be married , does not now apply as in Marriage everything is split 50:50.
I would not be so upset about this if she actually had any assets or savings of her own, but she has always spent freely often on things like clothes and shoes, make up etc and never, despite my encouragement been interested in saving for the future.
Now, I don't resent her having half of any profit on the house and its contents, but feel that as I had such a significant contribution on my own before we even met (i.e. the equity from my previous property) that I should rightly so gain a larger percentage from the sale of what ended up being the matrimonial home. I have actually offered a Clean Break settlement that amounts to actually 44% of the equity, some 6 % more than on the Declaration of Trust and means that from the time we moved in together onwards, she actually walks away with double the cash that I do.
Am I being naive - I just cannot believe this is right and dont want to have to pay £000's in Legal Fees to argue it out in court but this looks like the road she wants to go down. Does anyone think I have a valid case?
Any advice would be appreciated. Thank you in advance.
There is not principal that assets should be split 50/50 on divorce.
The overriding pricipal is that there should be a division of the assets which is 'fair to both parties, taking into account all the relevant circumstances'
all other things being equala 50/50 split may well be the settlement which is fair, but unequal settlements to take into account differences in income , earning capacity and needs are common.
The trust deed is not automatically binding, because you were subsequently married which alters the finacial rights and responsibilities which you have to each other.
The fact that you both entered into the trut deed and the fact that your finances were to a great extent kept separate are however both relevant circumstances, as is the fact that you had a comparatively shor marraige and that the existance of the trust deed and the way in which you organsied your finaces both tend to show that it is is possible to look at what contributions you each made.
I do not think you would automatically get exactly the same percerntage split as the trust deed sets out but I do think that the court would be likely to take it into account.
I'm in the same position, had a Dec of Trust drawn up on legal advice, mutually agreeable, then married, only lasted 1 year, now he's trying to take half the equity in the house when he paid nothing towards it! My solicitor tells me that the Dec of Trust has been superseded by marriage (am wondering who she works for at times) but didn't feel the need to mention that at the time they were charging £250 for drawing it up! I've got 2 children, he has no dependents & our earnings are similar - I feel like I'm fighting for my & their futures here - hope yours works out for you, have never written on anything like this before but am searching the web trying to find all that I can to help my case! If I do find anything I'll post it on here - & good luck
My spouse issued a divorce petition in November last year. We bought a house together in July 2012 as tenants in common. We signed a declaration of trust which stated the following:
"The parties hereby declare and agree that they hold the Property and its proceeds of sale (after discharging mortgage) and the net rents and profits until sale upon trust for themselves as tenants in common on the following terms that the remaining equity in the property shall be allocated as follows:
(a) to spouse an initial repayment of sum of £XX
(b) to me an initial repayment of the sum of £XX
(c) any balance payable equally between them"
We were married one year and one month later (Aug 2013), so the vast majority of the time the property was occupied, we were married.
I checked with the land registry office and they advised that in Section 10 of the TR1 form (sale transfer), the following box is ticked "they are to hold the property on trust for themselves as
tenants in common in equal shares."
Given that the land registry document makes no reference to the declaration of trust and states that we are tenants in common with equal shares, and that the property was lived in for the vast majority of the time whilst married, does the declaration of trust remain valid, or hold any weight when it comes to financial negotiations?