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Divorce and home ownership with parents

Posted by conf55 
Divorce and home ownership with parents
January 03, 2020 02:00PM
Hello
We live in a property with our son, his wife and their 2 children. We purchased it with our son before he was married. Neither we nor my son own an other property.
My son and daughter in law's relationship is going through a rough patch over the past 2 years and there is a good chance they might divorce. In this situation what would happen to our home. Does she have any rights to the property? Would we need to move out?

Thank You
Re: Divorce and home ownership with parents
January 03, 2020 02:15PM
>>Does she have any rights to the property?

Yes, she does and because there are two dependent children her rights are not insignificant. Whether you would have to move out is another issue. Your rights depend upon the nature of your financial interest in the property. That financial interest could range from being the absolute owners of the property to being on the title in name only. Where on that spectrum you fall basically depends upon where the money to buy the property and any mortgage actually came from.

Assuming that there is significant equity in the property and that your beneficial interest in the property is also significant possibly the property may have to be sold. It is wrong to assume that someone gets to live in the property and that the only question is which of you does so. A property is no more than something which can be turned into cash.
Re: Divorce and home ownership with parents
January 03, 2020 02:39PM
Thank you for replying.

The property is mortgage free.

Shortly after his marriage we had a declaration of trust drawn up to outline his share and our share. In total he has contributed about 18% mainly through paying the mortgage whilst we paid all the deposit and made overpayments when we were able.
If its an issue of housing they have enough money to purchase a property and we could help by buying his share.
Re: Divorce and home ownership with parents
January 03, 2020 04:34PM
>>If its an issue of housing

It is (although there is also an important issue relating to the declaration of trust and whether it actually genuinely reflects financial contributions or whether it was intended simply to thwart the jurisdiction of the divorce courts). His wife and children will need to live somewhere and a court will not think it reasonable that they should live in rented accommodation while her husband lives in a mortgage free property.
Re: Divorce and home ownership with parents
January 03, 2020 10:51PM
Thanks - the trusts reflects an accurate position. He had only been working full time for under 4 years when we purchased the property.
Re: Divorce and home ownership with parents
January 04, 2020 08:57AM
Unfortunately for you the time the trust was drawn up tends to suggest that protecting the property from your son's wife was not the last of your considerations. What the trust says is not likely to be the last word on the matter. For instance, any solicitor acting for your daughter in law is likely to want to know (1) who was on the legal title and why, (2) why a deed of trust was not drawn up at the time of the acquisition of the property by the conveyancer acting at the time, (3) what the mortgage company was told about the ownership of the property and (4) what exact financial contribution each party made with documentary evidence in support.
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