I have been asked: — “My husband and I are seperating but still living in the same house at the moment. He would like to buy a property close by but needs his share of the equity in our house to achieve this. I will remortage, which is agreed, to do this. We are both on the title deeds of the house and I am getting conflicting information from a few solicitors and he is getting different advice again! At present all we would like to do is transfer the house deeds into my name and he legally accepts an amount for the house to become mine with no claim against it.
I have been told that we need a legal seperation agreement to achieve this and that my husband cannot remain in the house.
Surely this can be achieved in an amicable way. Any advise would be appreciated. Thanks”
The first thing to understand about this is that you own this property together completely distinctly from your marital relationship. As far as the law is concerned you are just two strangers who happen to own a property together.
Accordingly, you can transfer this property without a separation agreement. The confusion surrounding the advice that you are receiving is that, whilst such a transfer is entirely possible, it is not advisable.
Normally, the house represents a substantial part of any couple’s wealth. As a result, it is often to be found that the capital value of the house is not equally divided. For instance, if the husband has a valuable pension and the wife no pension, you may find the wife will have the house transferred to her and the husband keeps the pension.
The solicitors are concerned that the house should be dealt with as part of the separation deal because they fear that you buy him out, he spends the money and then, when the time comes to divvy up the rest of the matrimonial property, he has nothing left and you are disappointed!
If your situation is that if there is nothing else to be divided, then there is no reason to delay. The solicitors are right. The husband will have to leave because since you are still married, as soon as you become the sole owner, your husband requires rights under the Matrimonial Homes legislation. You will not be able to put him out!
There may be a way round that whereby he gives up those rights but you will need very good legal advice on that before you go down that road. Much better that he should leave.
There is further comment at http://www.myscottishlawblog.co.uk/2012/01/08/separation-and-divorce-in-scotland-can-i-be-separated-and-still-live-in-the-same-house/
Bruce de Wert, Solicitor
I offer a hassle-free divorce service to those who have children under the age of 16 and have agreed everything. More information at www.MyScottishDivorce.co.uk
Disclaimer: A blog is not legal advice. You should check your personal circumstances with a solicitor as small details can make a difference!