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Thomas
Thomas, Lawyer
Category: UK Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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My husand and I have been married for 13 years and the home

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My husand and I have been married for 13 years and the home we live in is in his name.
If we divorce, will I have any claim on our home?

Hi,

 

Are there any children of the marriage, how old are they and who do you suppose would have residence of the children in the event you divorce?

 

 

 

Tom

Customer: replied 6 years ago.

We have both been married before and have grown up children from our first partners

I am 61 years of age and my husband is 79

 

Hi,

 

Was there any pre-nutpual agreement executed prior to marriage?

 

Is there any equity in the property?


Tom

Customer: replied 6 years ago.

100% equity

I would like to add, that both my husband and I have other properties that we let.

He has two with 100% equity and I have two, one with 100% equity and the second Ihas a mortgage.

 

Hi,


I assume no pre-nuptial agreement.


The basic position is that in a marriage of that length there is a presumption that each party shall be entitled to 50% of the matrimonial assets. This presumption can be rebutted where there are children (not applicable) here or (to a lesser extent) where one party requires more income because of health reasons or has less earning power.

 

The position is that the property and other properties would all be included in the matrimonial asset pool, so yes you would have a claim on this (just as he would on yours). Whether you end up with an interest in it depends on how you negotiate and then agree what should happen in terms of the assets and you would certainly need to seek specific advice from a local divorce lawyer on this.

 

If the property is the matrimonial home then when things are starting to look rocky you can register a home rights notice against the legal title of the property at the Land Registry noting your right to occupy the property as it is your home. This will make sure you hear of any attempt to sell the property and affords you options since you can take legal advice and possibly involved the Court.

 

If this is useful please kindly click accept so that I may be rewarded for my time. You will be free to ask follow up questions.

Kind regards,


Tom

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Customer: replied 6 years ago.

At the moment, my husand is leaving our home to me in his will and is leaving the other two properties to his grand children. Can he exclude me from his will and if so does this mean that I will have to give up my home?

Hi,

 

A person is free to leave there property to whomsoever they choose. If he choose to exclude you then you would have to make and prove a claim against the estate under the Inheritance (Provision for Family and Dependent) Act 1976. You must make the application within 6 months of the date of the grant of probate in the estate and you will need a solicitor to do it for you.

 

The Court will consider what is a "reasonable financial provision" and you would have to show that you were dependent on your husband in order to be successful.

 

You would still be able to register a home rights notice if he left it to someone else and if you dispute the administration of his estate in this way then your solicitor would negotiate with the executors over allowing you to stay in the property as an interim measure or perhaps you buying it from the estate. Though this would all be subject to how the proceedings resolve under the above Act.


Thank you for your kind accept.


Kind regards,


Tom

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Customer: replied 6 years ago.

Thomas

The reason I have asked my questions, is because I believe my husand is suffering from dementure and he keeps threating me with exclusion from his will as he thinks our age difference will cause me to look for companionship outside of our marriage.

 

It would appear from your answeres, that to secure my home and my financial future, I should divorce my husand. Would this be correct?

A divorce would not secure your home. It would just include it as part of the matrimonial estate upon which settlement should be sought.Whether you actually end up with it depends on what you negotiate with him. You could secure your right to remain there for the time being (ie until the long term plan of what is to happen to the house is sorted out) by issuing a home rights notice.

 

If you suspect your husband is suffering from dementia then you should seek medical attention. One has to have mental capacity in order to execute a new will so if they do not have the requisite mental capacity then any Will executed would be invalid.

 

In the event that he dies having made a Will leaving it to others then documentary evidence of your concerns of his mental state would help.

 

If you husband has capacity, is going to leave his estate to others, and you do not think you could make a claim on his estate because you are not dependent then the only way in which you may end up claiming some of his share of the matrimonial assets (if he has more than you) would be to divorce. But again, if he is in the early stages of suffering dementia and is likely to require a greater income/assets than you for his care then this will be a relevant consideration and perhaps result in awarding him a greater share.

 

I can't tell you to divorce or not. In order to divorce though the marriage must have irretrievably broken down. Whether it has is for you to decide.

 

I really think you have to seek some specific advice on this from a local divorce/contentious probate solicitor, they can advise you specifically after you have provided them with specific information of your assets/his mental health etc.

 

It does sound like a very difficult situation, you have my sympathies.

 

Kind regards,

 

Tom



Edited by Thomas on 10/26/2010 at 10:43 AM EST
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