Tag Archives: Scottish law

Divorced but still owning a house together?

Bruce de WertIt is often the case that a husband and wife divorce but still end up owning a property together.

Often one party will have met and want to marry another so the pressure is on for the divorce before proper arrangements have been made or, in other cases, a separation agreement will have been made that will have set down the arrangements for the sale of the house, in due course.

Either way, the “ex” may not want to sell the house and I am often asked how this situation is dealt with.

If there is no written agreement and attempts at persuasion fail, there is a court action available called “division and sale”. This action asks the court to divide the property into 2 parts and, if this is not possible (as in most cases of normal family homes, as opposed to farms and estates, etc.) then the court will order the sale of the property.

If there is a written agreement that allows for immediate sale and the “ex” will not, then the action may well be for “specific implement” where the court is asked to enforce the agreement. At that point, pray that it has been well written!

If the “ex” will not sign the papers after a successful sale, the court Clerk will be authorised to do so.

Of course, if you are in negative equity, then that is a different story….

Bruce de Wert

Solicitor

I offer a quickie and private divorce for those with children under 16 at www.myscottishdivorce.co.uk

The writing of a blog does not imply a Solicitor/client relationship.

 

Separation agreements and transfer of title

property separationI 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!

UK high on family breakdown/divorce table

I have just read this BBC headline.

http://www.bbc.co.uk/news/uk-20863917

I may be involved in ending marriages but that is not to say that I like it. I do my professional duty to the best of my ability but I am always conscious of the effect on children and seek to promote agreement regarding child care rather than conflict.

Children thrive in stable families and marriage is shown to produce the most stable relationships.

It does not always work out but this article is right in saying that the Government has no strategy. This is due to the persuasive argument that only the individuals concerned should be involved.

Unfortunately, the individual decisions of millions of citizens can have a significant effect on society, not least in the amount of cash that taxpayers have to pay to support one parent families.

There is no correct answer but a child-centric policy of promoting marriage and making breakup more difficult is part but, by no means all, of the answer.

The solution is, mainly, in changing cultural attitudes. Life is not easy and getting your cues for reacting to the significant difficulties that are thrown in your path from Eastenders is not appropriate. Most difficulties can be overcome by thinking of others rather than yourself and the first to be thought about are the children.

Bruce de Wert

Solicitor

www.myscottishdivorce.co.uk and www.georgesons.co.uk

 

 

Can I disinherit my children in Scotland?

The answer to that is “almost”.

If you make no will then your children will inherit something subject to my comments in an earlier blog. When I talk about children, I am talking about any children that you may have had by any relationship and any adopted children.

Can I represent myself in my divorce in Scotland – doing a Tommy Sheridan

Some bloggers have complained to me that the cost of divorce is too high and have asked me if they can represent themselves.

Of course, you can dismiss your solicitor and represent yourself. This is in the same way that when I pick up a hammer to put a picture on the wall, my wife refuses to let me do it, commenting that she prefers a “real man” who can do the job without destroying the house!

Charity Wills – MyScottishWill raises money for MFR cash for kids

Moray Firth radio cash for kids charity willMoray Firth radio Cash the kids Charity Wills

 

 

 

Now you can make your Scottish Will and help underprivileged children at the same time!

I am assisting Moray Firth Radio Cash for Kids appeal during the whole of October and make a donation to charity for every Will made.

Make your Will in the privacy of your own home, secure in the knowledge that it is completely valid and very affordable!

Click here to visit MFR cash for kids and make your will

Bruce de Wert

 

 

 

Bruce de Wert

 

In a Scottish will, can a beneficiary also be an executor?

last-will-testament-onlineI am often asked this question and the answer is a, resounding, yes!

In fact, I would say that in most Wills, that is the result.

This is hardly surprising since most people want their nearest and dearest to inherit and they also want the same loved ones to be in charge of winding up their estate, after their day.

So, for instance, a husband will appoint his wife as executor and then leave her everything, trusting her to ensure that the children are looked after.

They are seldom disappointed since, as a general rule, people want to benefit their bloodline.

 

You can make a legally valid Scottish Will instantly, online, at a time of your choosing and at a very competitive price at my website MyScottishWill

 

Living together and separating in Scotland – property rights

A recent Supreme Court judgement about property sharing by cohabitants after separation has provoked a great deal of interest.

The comments made about Gow v Grant are to the effect that Scottish law is much more flexible than English law.

I cannot comment since I know nothing of English law but what I can say is that if you want to protect yourself and your children from the financial consequences of a Scottish separation, get married first.

Mother forged son’s Scottish will-why did this happen?

MyScottishWillIn 2008, Steven Nicol died in a road accident. He left behind a daughter to his former cohabitee.

He also left behind his mother living in a house he owned.

It was decided, yesterday, by the Scottish Court of Session, that he left no Will. The Will that was produced by his mother, after his death, which left her that house, was, in fact, a forgery.

The difference between a Power of Attorney and a Will in Scotland

My Scottish Power of Attorney

Anyone made the executor of a Scottish will or given a Scottish power of attorney share similar responsibilities to the person appointing them.

They need to do what the granter wants and what is in the granter’s best interests. The difference, however, is that one one takes care of things whilst the granter is living and the other after the grantor has died.

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