Separation agreement or change beneficial ownership?

monstercheeseplant

I have an amicable separation with my partner. He is willing to leave me the house when our fixed term mortgage expires in two years (I have always paid the mortgage but both names are on the mortgage as I couldn't pass the affordability rules when I first bought the house).

As it is such a long time before I remortgage and can formalise the situation, I was looking into arranging a separation agreement with a solicitor so that I have more of a legal right to the house in the meantime (I know it is not 100%, but it seems to be the best option for the time being).

I consulted the solicitor firm Irwin Mitchell to work on the separation agreement, and they charged me £350 for an initial consultancy, which I found useful, and made me aware that I could change the beneficial ownership on my house to 100% in my favour - effectively giving me ownership of the property - without having to remortgage.

However the solicitor suggested I should still proceed with the separation agreement as it would give me more protection and could be used to formalise other areas of the separation, such as any money / bill agreements, furniture / contents, and child care (I have a son who lives with me 65% of the time, and the rest with my partner. I do the majority of school runs, extra curriculars etc).

I am not too concerned about any of these other areas (apart from my son obviously! But we already have an informal childcare agreement that works for everyone and I am confident this will be okay going forwards) - I just want some guarantee on the house. As mentioned we have an amicable separation and if I was to approach my partner with all these other formalities I am concerned it may scare them off from signing the agreement completely. But I do want something basic formalised as historically he isn't the most consistent with what he says and does.

I suggested to the solicitor that I could just change the beneficial ownership, but they were insistent that I should proceed with the separation agreement. They asked me to pay £1000 on account (£500 as a retainer used against the final invoice) and £500 towards costs.

Evidently the solicitor wants to make money. But I just want to retain control of my home. I know £1000 (or whatever the final figure turns out to be) is a small amount to guarantee my future ownership, but it is also a large short term expense which whilst I can just about afford, it could also be spent on a dozen other important things in my life.

Therefore I am torn between proceeding with the separation agreement which may be overkill, but gives me the most protection (for a hefty fee), or instead just looking to change the beneficial ownership which also seems to give me the legal protection I am seeking (and should also probably be done via a solicitor / conveyancer, but is presumably much cheaper?)

If anyone has any experience / qualifications in this area, I would really value your feedback.

Many thanks in advance.

Hoenir

Has your partner sought legal advice themselves yet. Presenting a fait accompli doesn't sound particularly amicable. Not least that the fact they will reman tied into the mortgage for the foreseeable future. Will mean that they potentially cannot move on with their own lives. 

monstercheeseplant

Hoenir said:

Has your partner sought legal advice themselves yet. Presenting a fait accompli doesn't sound particularly amicable. Not least that the fact they will reman tied into the mortgage for the foreseeable future. Will mean that they potentially cannot move on with their own lives. 

He's living with his new partner and has already moved on. He's okay with staying on the mortgage until it's up for renewal.

monstercheeseplant

monstercheeseplant said:

Hoenir said:

Has your partner sought legal advice themselves yet. Presenting a fait accompli doesn't sound particularly amicable. Not least that the fact they will reman tied into the mortgage for the foreseeable future. Will mean that they potentially cannot move on with their own lives. 

He's living with his new partner and has already moved on. He's okay with staying on the mortgage until it's up for renewal.

I should also note that we both have poor credit ratings at the moment, so neither of us will be in a position to remortgage early. We're both committed to working together to improve our credit scores in time for when the current fixed mortgage expires so we can formally go our separate ways.

Hope that helps. Constructive advice welcome

Hoenir

monstercheeseplant said:

Hoenir said:

Has your partner sought legal advice themselves yet. Presenting a fait accompli doesn't sound particularly amicable. Not least that the fact they will reman tied into the mortgage for the foreseeable future. Will mean that they potentially cannot move on with their own lives. 

He's living with his new partner and has already moved on. He's okay with staying on the mortgage until it's up for renewal.

Financially he remains tied in. You releasing him from the committment would be the gist of the advice you'd expect him to receive. As will continue to hold leverage until you do. 

Bettie

I had the beneficial interest signed to me many years ago. Ex partner stayed on mortgage and  deeds until the end of the mortgage. He was taken to court several times as he was always getting in debt and they tried to get 'my' house. Every time the judge found in his favour because of that piece of paper .  If he had been made bankrupt it could possibly have been overturned but there was a time limit on that,  7 years I think..
Best thing a solicitor ever did for me. 

monstercheeseplant

Hoenir said:

monstercheeseplant said:

Hoenir said:

Has your partner sought legal advice themselves yet. Presenting a fait accompli doesn't sound particularly amicable. Not least that the fact they will reman tied into the mortgage for the foreseeable future. Will mean that they potentially cannot move on with their own lives. 

He's living with his new partner and has already moved on. He's okay with staying on the mortgage until it's up for renewal.

Financially he remains tied in. You releasing him from the committment would be the gist of the advice you'd expect him to receive. As will continue to hold leverage until you do. 

  We are both tied in until the fixed mortgage expires due to us both having bad credit ratings anyway, so it makes no difference as neither of us will be able to do anything any earlier. I am looking for advice on the relative merits of separation agreements and / or just changing the beneficial ownership in terms of how much legal protection each would offer with regards to the property ownership. Do you have any experience with this? I don't need commentary on my ex's situation thank you 

monstercheeseplant

Bettie said:

I had the beneficial interest signed to me many years ago. Ex partner stayed on mortgage and  deeds until the end of the mortgage. He was taken to court several times as he was always getting in debt and they tried to get 'my' house. Every time the judge found in his favour because of that piece of paper .  If he had been made bankrupt it could possibly have been overturned but there was a time limit on that,  7 years I think..
Best thing a solicitor ever did for me. 

Hi Bettie thanks for sharing that. Can I just clarify - you are saying that having the beneficial interest 100% in your name saved them repossessing the house when your ex got into debt? If so that is good to know. I got confused because you said the judge always found in his favour - do you mean in his favour that they couldn't use your house to service his debts? Sorry if I have misconstrued....

ian1246

Any agreement you reach on a asset worth 100's of £1000 where you've had advice and he hasnt, runs a degree of risk of it being overturned should he contest it.

Currently legally he owns 50% of the house if its joint-tenancy, regardless of who pays what on the mortgage or deposit. That's the starting position he'll be told if he seeks legal advice.

The point around legal advice is the same principle which applies to pre-nuptials - how much weight a judge places on such an agreement depends on the comparitive legal equality between the parties - they are significantly more likely to uphold such an agreement where both parties have had independent legal advice and know what they are agreeing to, as opposed to where one party has and one hasnt.

Something just to be aware of.

Hoenir

monstercheeseplant said:

Hoenir said:

monstercheeseplant said:

Hoenir said:

Has your partner sought legal advice themselves yet. Presenting a fait accompli doesn't sound particularly amicable. Not least that the fact they will reman tied into the mortgage for the foreseeable future. Will mean that they potentially cannot move on with their own lives. 

He's living with his new partner and has already moved on. He's okay with staying on the mortgage until it's up for renewal.

Financially he remains tied in. You releasing him from the committment would be the gist of the advice you'd expect him to receive. As will continue to hold leverage until you do. 

  We are both tied in until the fixed mortgage expires due to us both having bad credit ratings anyway, so it makes no difference as neither of us will be able to do anything any earlier. I am looking for advice on the relative merits of separation agreements and / or just changing the beneficial ownership in terms of how much legal protection each would offer with regards to the property ownership. Do you have any experience with this? I don't need commentary on my ex's situation thank you 

Legal protection against what?  Is there something you haven't told us. Your solicitor would have explained the legal position of what you are proposing. After that it's a question of obtaining your ex's agreement. 

On forum's you'll receive personal opinions not qualified advice. 

monstercheeseplant

ian1246 said:

Any agreement you reach on a asset worth 100's of £1000 where you've had advice and he hasnt, runs a degree of risk of it being overturned should he contest it.

Currently legally he owns 50% of the house if its joint-tenancy, regardless of who pays what on the mortgage or deposit. That's the starting position he'll be told if he seeks legal advice.

The point around legal advice is the same principle which applies to pre-nuptials - how much weight a judge places on such an agreement depends on the comparitive legal equality between the parties - they are significantly more likely to uphold such an agreement where both parties have had independent legal advice and know what they are agreeing to, as opposed to where one party has and one hasnt.

Something just to be aware of.

Thank you that's really helpful. He's aware that he has (and is entitled) to 50%, it's just that due to numerous reasons - personal and financial - he is waiving that right. I just want some kind of legal assurance that our verbal agreement remains intact when it comes time to remortgage.

I believe that if we were to proceed with a separation agreement, he would have his own legal advice anyway, which would maintain the legal equality you mention.

Hypothetically in a scenario where we just change the beneficial interest - neither of us would have had legal advice, so would that not also constitute legal equality also? Or we would be able to both pay 50% to the conveyancer / solicitor who changes the beneficial interest for us, ensuring equality?

So I'm still unclear if the separation agreement would provide any greater protection.