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Divorce and Separation subsections
High Net Worth Divorce
Declaration of Trust
It is now common for people to buy property together outside of marriage. Often, to help fund a purchase, one or both parties to the relationship will receive financial support from their parents. If a married couple splits up, the separation of their assets and finances would be dealt with by divorce proceedings. However, for unmarried couples there is no equivalent process and each party is entitled to walk away with his/her own assets.
The division of jointly owned property is the issue that frequently causes the biggest concern when unmarried couples separate. If there is a disagreement, it is possible to ask a court to determine their rights, but that will be time consuming, costly, and very stressful.
The outcome of court proceedings will depend upon the unique facts of a particular case. However, the starting point for a court is always - where there is joint ownership, in the absence of clear evidence to the contrary, there is a presumption of equality. Consequently, if there is no evidence of an agreement to own the property in unequal shares, the partner who contributes the most may ultimately lose out. Similarly, half of any contribution made by a parent may end up with their child’s ex-partner.
The Benefits of a Declaration of Trust
To minimise the scope for a future disagreement unmarried couples should enter into a declaration of trust. This enables them to set out their respective shares in the property and to recognise and protect the interests of their parents. Ideally, it should be put in place at the time the property is purchased.
It is also advisable to use a declaration of trust to record an intention of equal ownership when unequal contributions are made to the purchase. This will ensure that the agreement is honoured if the relationship breaks down. Also, if the party who makes the bigger contribution dies or becomes incapable, those dealing with his/her estate will be bound by the declaration.
As a final word of caution, remember that unmarried couples should make a will if they wish to confer any benefit upon one another on death. In some instances jointly owned assets pass automatically to a surviving co-owner without the need for a will. However, in the absence of a will, an unmarried partner has no entitlement to the deceased’s individual assets or his/her share of joint assets held under a tenancy in common.
OTS Solicitors are specialists in the fields of trusts and estates and can help you if you would like to discuss protecting or enforcing your interests in a property.
Where land is owned by two or more people, they each have a simultaneous interest in the land and are known as “co-owners”.
There are two ways in which co-owners may hold property:
– As joint tenants – Under a joint tenancy, each tenant has an indivisible share in the property and all of the tenants are equally entitled to the whole property.
– As tenants in common – If co-owners hold the property as tenants in common, they each have a distinct beneficial share in the property. It is advisable for the co-owners to indicate expressly the proportions in which they hold the property, rather than leaving this to be implied from the circumstances and the financial contributions made by each co-owner. A Declaration of Trust can be used to demonstrate how the property is held by the different co-owners.
A declaration of trust is a legal agreement between the joint owners of property. It may include several pieces of information, such as the amount each owner contributed towards the purchase price, their respective ownership shares, and what happens if someone dies or wants to move out or there is a dispute about how to develop the property.
When is it advised to have a declaration of trust?
If you are buying a home with your partner or friend, and you are purchasing the property as tenants-in-common, then you should speak to your solicitor and get a deed of trust drawn up. It may not be exactly romantic, but it could spare you a lot of pain if you ever decide to go your separate ways.
What are the benefits of having a declaration of trust?
If one of you has contributed more money towards buying the property, you may decide that it is fairer to reflect this in your share of the property for example – where one owner paid 30% towards the purchase price and the other paid 70%, each party to the transaction will hold a fiscally apportioned interest in the property according to their contribution.
In addition, if the property is owned as a tenancy-in-common and one of you dies, that share will pass in accordance with the terms of the deceased’s will (or under the rules of intestacy, if they don’t have a will). This means that the surviving joint owner of the property will have no control over who owns and lives in the co-owner’s part of the property. A deed of trust can be drafted to avoid this problem by stipulating exactly what should happen to the property if a joint owner dies.
Are you buying a property with someone else? You may fit into one of the following categories:
Cohabiting unmarried couple
Are you contributing differing amounts to the deposit, fees, or mortgage payments? If so, you need a Declaration of Trust to clarify:
The percentage of the deposit each person will pay
The percentage of the property each person will own
How much each owner will contribute towards mortgage payments
How much each owner will contribute towards fees
Have you ever thought about what will happen if you want to sell the property? Have you given any thought as to what will happen to the property if there is a relationship breakdown or if one party simply wants to sell up? You need a Declaration of Trust to clarify:
What happens if an owner decides to sell their share
What proportion of the sale proceeds each owner will receive if the property is sold
How any mortgage on the property will be paid off
You may need a Declaration of Trust:
If you are contributing a large share of the deposit for the property
A Declaration of Trust can help you protect your financial contribution in the event that you decide to sell the property or your share in the property.
If you are contributing towards purchase expenses, such as legal fees, stamp duty or removal costs
A Declaration of Trust can set out your financial contribution and specify how you wish to be repaid in the event that the property is sold.
If you are making contributions towards the mortgage
A Declaration of Trust can set out how you wish to contribute to mortgage payments and how you wish to be repaid for your contribution, should you come to sell the property.
Have you considered any mechanism for buying out your joint owner’s share in the property?
A Declaration of Trust can specify the terms upon which you transfer the property.
If you want to avoid prolonged legal disputes over finances if your relationship breaks down
A Declaration of Trust can set out if and when the property should be sold and how the sale proceeds should be divided between the owners.
When should a Declaration of Trust be created?
It is important to create the Declaration of Trust at a time when the owners of the property and other persons who may have contributed towards it are in agreement.
No one expects to get divorced. Our family team is aware of the unsettling and upsetting nature of separation and marriage dissolution. Although relations may start off amicably, as the divorce process gets underway and financial and childcare arrangements are negotiated, things can swiftly turn acrimonious without the support of an experienced divorce solicitor.
Our family lawyers in London are headed by Jordana Adams. Jordana has over five years’ experience in family law and litigation and is a member of Resolution, an organisation of 6,500 family lawyers who follow a strict Code of Practice designed to resolve family law matters in a constructive, non-confrontation manner. Resolution members also campaign for improvements to the family justice system.
As a law firm, we are committed to helping couples resolve family law disputes in a non-confrontational manner. As with all the best divorce lawyers, we work to avoid couples ending up in court; we support them in finding workable, long term solutions to resolving disputes over financial settlements and childcare arrangements. This is achieved by encouraging round-table negotiations and mediation, both of which Jordana and her team have an abundance of expertise.
The basic law of divorce in England
To obtain a divorce under English law, you must have been married for more than 12 months.
The only ground for divorce is that the marriage has ‘irretrievably broken down’ due to one of the following factors:
- unreasonable behaviour
- separation of two years or more
- separation of five years or more
Once you have established grounds for divorce, you need to lodge a Petition for divorce in the Family Court and serve notice on your spouse, either in person or by post. Evidence of service must be shown to the court by the producing of an Acknowledgment of Service Form signed by your spouse or their solicitor.
You or your spouse have the option to defend your divorce; however, this happens rarely, and few divorces are defended successfully. If you are considering defending your divorce, our divorce lawyers can provide you with the best advice as to how and whether to proceed.
The financial settlement
Aside from childcare arrangements, financial settlements cause the most conflict amongst divorcing couples. Our family law team has an in-depth understanding of the consequences financial agreements can have on both parties to a marriage. We will advise you on the information you need to collate to prove the value of the matrimonial property at stake and guide you on the long-term implications of any settlement reached.
If you are unable to reach an agreement by yourselves or via mediation, then the court can determine a financial settlement for you. The considerations the court must take into account when working out a financial settlement are set out under the Matrimonial Causes Act 1973, section 25 and include:
- the duration of the marriage
- the current and potential future income and assets of each spouse
- the standard of living enjoyed by the family prior to the breakdown of the marriage
- the contribution each party has made or will make in the future to the welfare of the family
- the age of the parties
- the conduct of each party, and whether the way one party has behaved would make it unfair to the other party if the Court were to disregard it (note: this conduct has to be extreme, the courts are not interested in who was to blame for the breakdown of the marriage)
If the only way to work out a financial settlement is via a court order, you can trust that our family law solicitors will provide you with exemplary legal advice and representation.
When we advise on separation and divorce, we take the welfare of the whole family into account. Children who are caught in the middle of battling parents can be adversely affected; therefore, we will ensure that you and your spouse have opportunities to discuss childcare arrangements in a neutral, calm environment.
As members of Resolution, our family law solicitors are dedicated to helping you resolve your childcare arrangements in a peaceful, non-confrontational manner. There is an abundance of support available to help you and your partner negotiate arrangements for your children and assist you with accessing the services you require.
Dividing the family home after a divorce
The family home is an asset and becomes part of the financial settlement. There are several ways you could choose to deal with dividing it including:
- One partner buys the other’s share in the property
- You sell the house and split the proceeds
- One partner continues to live in the family home, with the children, and the other receives assets to even up the distribution or receives the balance when the property is sold after the children leave home or the occupying partner remarries. This is known as a Mesher Order.
Jordana and her team will help you work out the best solution to distributing your family home and support you to ensure your best interests are protected.
Providing sensitive service
Experience has provided the family law team at OTS Solicitors with an understanding of the stress divorce, and legal separation can bring. During negotiation and/or mediation, we will protect you from any pressure to make a decision you are not yet ready to commit to. We will also ensure that any resolution and/or court proceedings are conducted in a respectful manner, with both sides having a fair chance to state their case.
In cases of physical and/or emotional abuse, you can trust that we will use every legal tool at our disposal to protect you and your children. We are experienced at obtaining quick Non-molestation and Occupation Orders. Our team will also move speedily to get a freezing order in place if you believe your spouse will attempt to hide money and assets.
At OTS Solicitors, we understand divorce and how to obtain the best settlement for our clients so that they can move on to a positive future.