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  • FIRST POST
    • Lysimache
    • By Lysimache 4th Oct 17, 8:53 PM
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    Lysimache
    Tenancy in common - what happens if other tenant divorces someone else?
    • #1
    • 4th Oct 17, 8:53 PM
    Tenancy in common - what happens if other tenant divorces someone else? 4th Oct 17 at 8:53 PM
    Hi!

    Suppose I jointly own a house with someone else (Party X) to whom I am not related. It's a 50:50 tenancy in common.

    Suppose Party X gets married and... then divorced. Could a court force a sale on property to pay out half the share to Party X's spouse that would leave me turfed out of the property?

    Can Party X put some sort of clause in their prenup to say that if they divorce, I can't be turfed out of this home? Or is that legally impossible?

    I know prenups have limited legality and I know if they have kids, then courts can do whatever they like, but suppose they don't have kids. Having some clause in the prenup is better than nothing, but I don't know if it's possible to put something vaguely in there that might protect me as someone who owns property with someone who is getting married. Is it?
Page 1
    • G_M
    • By G_M 4th Oct 17, 9:06 PM
    • 41,430 Posts
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    G_M
    • #2
    • 4th Oct 17, 9:06 PM
    • #2
    • 4th Oct 17, 9:06 PM
    Yes Party X's ex could make a claim on their share, jut as any other asset owned in a marriage goes into the mix.

    however I seriously doubt a judge would force a sale given you are independant of the marriage and it is your home.

    But you might find the ex owning the other 50%.....
    • Lysimache
    • By Lysimache 4th Oct 17, 9:17 PM
    • 53 Posts
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    Lysimache
    • #3
    • 4th Oct 17, 9:17 PM
    • #3
    • 4th Oct 17, 9:17 PM
    Thanks for the quick reply.

    Cool, I'm less worried about ex owning the other quarter, more about hypothetically suddenly having to leave all of a sudden.

    Though obviously the quarter-owner could at some point in the future decide to force a sale in order to liquidise their share. OR can the other property owner put something in their pre-nup to say they can't suddenly evict me if they get a share?

    Do divorce judges ever hand down orders saying you get X property but cannot force a sale while the unconnected party is already living there?
    • G_M
    • By G_M 4th Oct 17, 9:29 PM
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    G_M
    • #4
    • 4th Oct 17, 9:29 PM
    • #4
    • 4th Oct 17, 9:29 PM
    Not sure where the other 'quarter' comes from. you said 50:50. My maths makes that half.
    Cool, I'm less worried about ex owning the other quarter, more about hypothetically suddenly having to leave all of a sudden.

    Though obviously the quarter-owner could at some point in the future decide to force a sale in order to liquidise their share. OR can the other property owner put something in their pre-nup to say they can't suddenly evict me if they get a share?

    Do divorce judges ever hand down orders saying you get X property but cannot force a sale while the unconnected party is already living there?
    Originally posted by Lysimache
    Errrr....:

    Party X's ex could make a claim on their share, just as any other asset owned in a marriage goes into the mix.

    however I seriously doubt a judge would force a sale given you are independant of the marriage and it is your home.

    But you might find the ex owning the other 50%.....
    • Lysimache
    • By Lysimache 4th Oct 17, 9:31 PM
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    Lysimache
    • #5
    • 4th Oct 17, 9:31 PM
    • #5
    • 4th Oct 17, 9:31 PM
    Ahh, sorry for the confusion.

    Current division would be: 50% me 50% other person.
    Post-divorce it could be: 50% me, 25% other person, 25% other person's ex.

    So ex might own other 25% (or 50% if judge felt they needed the whole of the other person's share). Okay, that's slightly reassuring.

    I might explore what sort of clauses get put in prenup agreements and maybe suggest some lines to my fellow owner (to be).
    • TBagpuss
    • By TBagpuss 4th Oct 17, 10:49 PM
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    TBagpuss
    • #6
    • 4th Oct 17, 10:49 PM
    • #6
    • 4th Oct 17, 10:49 PM
    OK, a court in divorce proceedings could award the spouse some (or all) of your co- owner's share, but they would only be likely to do so if there were no other available assets - if there were other assets, a court would probably offset the value of your co-owner's share in the house house you live in against other assets, simply because it is less complicated. (although that would not stop your co-owner agreeing with their spouse to transfer their share, or part of it.)

    In practie, if any co-owner wanted to sell, it would always be open to the other co-owner (or owners) to buy them out, so as to avoid the property having to be vacated and sold, so the easiest solution in those circumstances would before you to remortage to buy out your co-owner.

    You and your co-owner could enter into a deed of trust which could include provisions defining the circumstances in which either of you can force a sale - so the two of you could have a agreement that (say) if one of you want s to sell, the other has x months to by them out, before the property is placed on the market.

    In theory you could have a agreement that said you have a right to occupy the property permanently but your co-owner would probably be advised against agreeing that, as it's very one-sided.
    • Pixie5740
    • By Pixie5740 5th Oct 17, 6:26 AM
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    Pixie5740
    • #7
    • 5th Oct 17, 6:26 AM
    • #7
    • 5th Oct 17, 6:26 AM
    Why don’t you buy your own home a leave X out of it? X is about to get married so might soon find (s)he doesn’t need the financial burden of being the joint owner of a property with you.

    I would not be impressed if my fianc!e presented me with a pre-nuptial agreement. Not that pre-nuptial agreements are legally binding in England & Wales anyway.
    Annual income twenty pounds, annual expenditure nineteen pounds nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds nought and six, result misery.
    • Lysimache
    • By Lysimache 5th Oct 17, 11:25 AM
    • 53 Posts
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    Lysimache
    • #8
    • 5th Oct 17, 11:25 AM
    • #8
    • 5th Oct 17, 11:25 AM
    You and your co-owner could enter into a deed of trust which could include provisions defining the circumstances in which either of you can force a sale - so the two of you could have a agreement that (say) if one of you want s to sell, the other has x months to by them out, before the property is placed on the market.
    Originally posted by TBagpuss
    Yes, we have a provision about how much notice should be given before forcing a sale so one person doesn't suddenly end up out without time to sort their affairs. My concern was a divorce court wouldn't care about an agreement that didn't affect a hypothetical future spouse of the co-owner. So even if my co-owner and I agree to give each other X notice before selling etc, that doesn't bind anyone they marry with.

    Hence why we were wondering if asking for a provision in any prenup might help extend that protection (assuming no kids) a bit. Even though it's not binding, it might make a judge think 'hmm, the (future) spouse has also agreed to X months notice if they get the house in this prenup'

    Neither of us can buy house on own as deposit not big enough!
    Last edited by Lysimache; 05-10-2017 at 11:27 AM.
    • Comms69
    • By Comms69 5th Oct 17, 11:30 AM
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    Comms69
    • #9
    • 5th Oct 17, 11:30 AM
    • #9
    • 5th Oct 17, 11:30 AM
    Forget the divorce bit - the simple answer is yes a joint owner can force a sale.


    Whether they gain ownership via divorce, inheritance, gift is irrelevant.


    your agreement to give x notice isn't legally valid in anyway.
    • steampowered
    • By steampowered 5th Oct 17, 11:32 AM
    • 1,791 Posts
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    steampowered
    The starting position is that a 50% owner is entitled to apply to court for an order for sale at any time.

    It is not fair for one co-owner to be living in the property by yourself rent-free while the other 50% owner is unable to access their money.

    This principle applies regardless of whether the other 50% owner is Party X or whether it is Party X's former spouse.

    There is nothing you can do to change this with a pre-nup or any other type of agreement.
    Last edited by steampowered; 05-10-2017 at 11:37 AM.
    • steampowered
    • By steampowered 5th Oct 17, 11:36 AM
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    steampowered
    Even though it's not binding, it might make a judge think 'hmm, the (future) spouse has also agreed to X months notice if they get the house in this prenup'
    Originally posted by Lysimache
    I am sure that the time it would actually take for someone to get a court order would be far longer than the notice period you are considering.

    Before an order for sale can be obtained, all owners of the property would be notified. They would have the chance to attend a court hearing to object.

    It would take several months for the court hearing to happen.

    If the judge decides to make an order for sale at the hearing, there would then be another few months before the sale actually happens.

    The usual 'order for sale' simply orders the parties to co-operate with regards to marketing the house in order to achieve a sale within say 3 months. The court would only make a more draconian order if one of the parties refused to co-operate.

    Just because someone applies for an order for sale, that doesn't mean the house magically gets sold overnight! The order for sale process takes months, often longer than a year - there will be plenty of time for people to sort out their affairs.
    Last edited by steampowered; 05-10-2017 at 11:39 AM.
    • Red-Squirrel
    • By Red-Squirrel 5th Oct 17, 11:38 AM
    • 1,740 Posts
    • 4,683 Thanks
    Red-Squirrel
    Why don’t you buy your own home a leave X out of it?
    Originally posted by Pixie5740
    Have to agree with this. I assumed you already owned the house together and the marriage was the new thing.

    If you haven't already got tangled up in this mess don't do it! Part owning a house isn't worth the hassle you could end up with further down the line.
    • Lysimache
    • By Lysimache 5th Oct 17, 11:59 AM
    • 53 Posts
    • 20 Thanks
    Lysimache
    Thank you very much for the advice above - that's very helpful!

    I see where I was going wrong - not realizing that you can't really give away the power to sell for 6 months or a year's notice anyway if you have a share in ownership, even if by agreement.

    Also reassuring to know divorce sales aren't super speedy.
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