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Stuart J
Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 19534
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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From Dr Peter F Smith, (email:XXX@XXXXXX.XXX) As part

Resolved Question:

From Dr Peter F Smith, (email:XXX@XXXXXX.XXX)

As part of a 1983 divorce agreement in the UK, I have a 25% legal charge on my ex-wife’s UK house (arising from the fact that I agreed to contribute 25% of the value at that time, which would eventually be returned to me if my ex-wife died or remarried).

I was later advised that, since this legal charge belonged to me, I could, if I wished, sell it or transfer it to someone else, without my ex-wife needing to agree to this (since it does not belong to her)

I am now remarried (living partly in California and partly in the UK) and would like to have the legal charge converted to the joint names of my self and my present wife, or even transferred to her entirely. But someone with some legal knowledge has suggested to me that I would not be able to do this without the agreement of my ex-wife (which is unlikely to be possible, since I am not in amicable contact with her).

This surprised me, because my share of her property does not belong to her, so I should be able to do as I wish with my 25% share.

Could you please advise me about this – can I convert a legal charge on my ex-wife's house, currently in my name only, to my present wife’s name, or to our joint names, without needing the agreement of my ex-wife ? Thanks, XXXXX
Submitted: 8 months ago.
Category: UK Law
Expert:  Stuart J replied 8 months ago.

Thank you for the question. It is my pleasure to help you with this today. Please bear with me if I ask for more information. You cannot change the name on the charge without her consent but what you can do is assign the benefit of the charge or part of it to whoever you wish. Your ex has no control over that. The new party would have the equitable title or part of it but you still retain the legal (on paper) title. Once assigned , then the assigned value is no longer of benefit to you when the charge crystallizes.

 

Does that answer the question? can I answer any further points?

 

I am offline now until tomorrow but can pick this up then if needed. Thanks

Customer: replied 8 months ago.

From Dr Peter F Smith


Thank you for your very clear answer. This means, I think, that I could assign the benefit to my present wife. But there are two points needing clarification


 


(a) Would such an assignment to my present wife survive my death (eg if I were to predecease my ex-wife) ?


 


(b) Can such an assignment be to the joint names of myself and my wife? If so, then that would solve the problem in my question (a)


 


Thanks, XXXXX

Expert:  Stuart J replied 8 months ago.
I am glad to help.
a) yes it does
b) not strictly, what happens is that you assign 50 % .

It makes no difference if you die if it is assigned or not. You can leave the benefit to her in your will of all if not assigned or half if she already has 50% BUT that can be changed.

You cannot change it once assigned but you can change your will
Customer: replied 8 months ago.

I had one more question, but am not sure if it got sent.


 


My problem was that if I predeceased my ex wife she would assume that the legal charge died with me, so she would then be sole owner.


 


In fact my Will already states that all my assets go to my present wife, but the legal charge would not materialise until later when my ex-wife dies, which could be for example 10 years later. By what paperwork could my present wife ensure that she eventually benefits from this? Thanks, XXXXX

Expert:  Stuart J replied 8 months ago.


I didn't
get any other question.

That
assumption is wrong.



Assets
do not die with the owner.



Debts (not
asset) die with the owner, but only if there are no assets (not applicable in
this case).



I
think the easiest way and simplest way of dealing with this if you are
concerned about what happens on your death rather than during your lifetime is
quite simply to refer to the legal charge in your will and say that she gets it
and that way your wife will be aware that it exists and that she is entitled to
the benefit of it.



It
therefore remains yours during your lifetime to do with as you wish and if ever
you got divorced, it might be taken into account with regard to marital assets.
If you assign it, or assign part of it, the assignment is irreversible.



Whatever
you do, you need to make sure that she is aware of it and if you assign half of
it to your wife, then the other half which you are retaining needs to be mentioned
in your will.



Beware
of making something which is completely impractical and my suggestion would be
to simply leave her the benefit of it in your will, rather than go to the
trouble of assigning it, particularly if you are only thinking of assigning part of it.

Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 19534
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
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