DIVORCE WHILE STILL OWNING A JOINT PROPERTY

KKILP

Hi

Ive been seperated from my wife for over 10 years who now resides in NI and have a 20 year old daughter,  I wish to divorce but due to circumstances and with COVID reducing work loads I am unable to sell the property.  She is demanding half the house anyway which I doubt she would be due as she left and hasnt paid a penny towards the mortgage or upkeep of the house since she left,  I was wondering would I still be able to get divorced even though the mortgage is in joint names?  

RAS

Is it a joint tenancy or tenants in common? And why have you allowed this situation to occur? It would have been much better to have dealt with it a decade ago.

AskAsk

the ownership status of your property has no bearing on whether you can get divorced or not.  i assume you are not asking about whether you can get a divorce, but about whether she has a claim on your property.  as your daughter is now no longer considered a dependent, her claim to the property will not be as strong as when your daughter was a dependent.

as to what proportion of your house is your wife entitled to will have to be determined by the courts if you and your wife can not come to an agreement.  your first port of call would be to seek the advice of a divorce lawyer to ascertain what proportion of the property does she have claim to on divorce.

KKILP

RAS thanks, it is a joint mortgage not a tenancy,  she rents a property in NI herself, I stay in UK in the home we purchased together and my daughter lives with me now as she is at University so she is still classed as being dependent as she is still in full time education I believe.  We left it as it was as it wasnt causing any hassle being living in seperate countries but think now is the time as our daughter is 20 and probably right should have done a while ago but suited us both.

KKILP

AskAsk, thanks  my daughter lives with me hence why I dont want to sell it as it was her home as a young child, and still refers to it as home even though she resided with her mum part of the year in NI.  She has no intention of going back to stay with her mum even after graduating in three years time,well at moment anyway,  would she still be entitled to half the house at todays value less the mortgage still due on it, or would it be at the time we seperated as she hasnt paid any contribuiton to mortgage or anything else during the time she has stayed in NI

AskAsk

KKILP said:

AskAsk, thanks  my daughter lives with me hence why I dont want to sell it as it was her home as a young child, and still refers to it as home even though she resided with her mum part of the year in NI.  She has no intention of going back to stay with her mum even after graduating in three years time,well at moment anyway,  would she still be entitled to half the house at todays value less the mortgage still due on it, or would it be at the time we seperated as she hasnt paid any contribuiton to mortgage or anything else during the time she has stayed in NI

divorce split of assets starts with a 50/50 split, then it can start to deviate depending on personal circumstance.  this will be determined by the court and will take into account each partner's earnings, dependent children, each partner's contribution to the property, each partner's assets before marriage, and i am sure a whole load of other things.

if you consult a divorce lawyer for advice, they will be able to tell you how much your wife will be entitled to, and she will be entitled to something, then you could negotiate with your wife on the split without it having to be decided by the court as i understand if it gets to this stage where the partners can not agree, then it can become quite expensive and lengthy so it is always best to arrive at an amicable settlement between yourselves.

KKILP

thanks AskAsk

TBagpuss

Yes, you can divorce regardless of the property situation.
If your wife is not cooperating you can also apply to resolve the financial issues through the court.
The one thing you shouldn't do is get married again, before you have resolved the finances and got an order in place. 

Talk to a solicitor and they will be able to give you the options and also advise about how to get to the point where you can sell the house, and how much of the equity your wife may be entitled to. 

RAS

KKILP said:

RAS thanks, it is a joint mortgage not a tenancy,  she rents a property in NI herself, I stay in UK in the home we purchased together and my daughter lives with me now as she is at University so she is still classed as being dependent as she is still in full time education I believe.  

If you had divorced a decade ago, you'd have had to pay your ex wife have the value then, less the mortgage, possibly more if your daughter lived with her.

You now risk her asking for half the current capital, which will be much greater than 10 years ago. She may not, and even if she does, a court may not grant her that amount. But that case may cost. Does she want to divorce?

Assuming you are in England and Wales, all freehold properties owned by more than one person are either joint tenancies (almost default) or tenants in common (often where the owners are not married). Tenants in common can leave either portion of the property to whoever they wish, whilst the death of the first party leaves everything to the survivor in joint tenancies. If you have a joint tenancy and die, your ex gets the house and your daughter gets nothing.
. 

AskAsk

RAS said:

KKILP said:

RAS thanks, it is a joint mortgage not a tenancy,  she rents a property in NI herself, I stay in UK in the home we purchased together and my daughter lives with me now as she is at University so she is still classed as being dependent as she is still in full time education I believe.  

If you had divorced a decade ago, you'd have had to pay your ex wife have the value then, less the mortgage, possibly more if your daughter lived with her.

You now risk her asking for half the current capital, which will be much greater than 10 years ago. She may not, and even if she does, a court may not grant her that amount. But that case may cost. Does she want to divorce?

Assuming you are in England and Wales, all freehold properties owned by more than one person are either joint tenancies (almost default) or tenants in common (often where the owners are not married). Tenants in common can leave either portion of the property to whoever they wish, whilst the death of the first party leaves everything to the survivor in joint tenancies. If you have a joint tenancy and die, your ex gets the house and your daughter gets nothing.
. 

the OP doesn't have a time machine so telling him he should have got divorced 10 years ago is not going to help!  they may have decided as a couple not to go down the formal divorce route for personal reasons until now.

as far as I am aware, if you have been separated for at least 5 years, you will be given a divorce without the need for your spouse to consent to the divorce.  as the OP has been separated for 10 years, i would expect whether his wife agrees to the divorce or not is irrelevant.  i stand to be corrected but my friend wanted to get a divorce and his wife wouldn't agree to it so he had to be separated for 5 years before he could get a divorce.  his wife still didn't agree to it but it no longer mattered after 5 years of separation.

RAS

I'll re-phrase the question, as I was really trying to understand how co-operative the ex would be.

OP, you can divorce your wife without her consent, but is she going to be happy with that? 
And how likely is she to demand "her fair share" of your current assets as part of the financial settlement? Does she have any assets of her own?