Page 18 - November 2023
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EXPERT ADVICE

                       Breaking up is hard to do

           Nobody likes to think about it, but do you know what would happen to             to you before your divorce was finalised, the will’s   that can suit all parties. This is something you
                                                                                            current instructions would still apply – which you   can  request  as part of a  divorce  settlement,
                      your home if you and your partner separated?
                                                                                            may not want to be the case.         but something that isn’t enforceable if you’re
                                                                                                                                 unmarried; in this instance, it would be helpful
                                            in advance about what might happen if you were   Don’t rely on hearsay               to  have  an  agreement  in  place  prior  to  the
                                            ever to split, and had made the necessary legal   One of the most common pitfalls faced by   relationship breakdown which states that one
                                            arrangements prior to purchasing a property     cohabiting, unmarried couples is the belief that   partner would have the right and the means to
                                            together. But of course, this isn’t always the case   they are protected by ‘common-law marriage’   ‘buy out’ the other.
                                            – so we’ve spoken to the experts to find out what   after living with a partner for a certain amount
                                            you need to know.                               of time. There is no such thing as common-law   If you’re separating amicably, you may be able to
                                                                                            marriage in Scotland, and you are not afforded   agree on a situation that suits you both, but if not,
                                                                                            spousal rights if you are unmarried, no matter   you will need legal advice to reach a conclusion.
                                            Assess your situation
                                            Prior to marriage, or purchasing the property   the length of time you have been together.  It’s imperative that if you are unmarried and
                                            together, did you take out legal agreements                                          living together, you understand your rights and
                                            confirming  your  rights  as  homeowners,  or   What if you aren’t named on the mortgage?  what you’re not entitled to.
                                            perhaps you  signed a pre-nuptial  agreement?   Separation can be very detrimental if one partner
                                            If either of these are applicable, your rights as   isn’t named on the mortgage. It’s not uncommon   What if the home isn’t paid for equally?
                                            homeowners become much clearer for your         that couples split the mortgage repayments   It’s not uncommon for household bills to be
                                            solicitor to navigate. If not, you’ll certainly need   equally, but only one person paid the deposit for   split differently according to separate incomes,
         t’s a situation you never hope to find yourself   to seek legal advice about your situation.  the property, or just the higher-earning partner   especially in a family setting where one partner
         in,  but  it’s  something  that  unfortunately                                     was named as the mortgage holder.    may earn less due to working part-time and
      I applies to a third of married couples in   If you are cohabiting, or about to take the plunge,                           raising children. In an instance where one partner
       Scotland: we’re talking about divorce.   it’s worth speaking to a solicitor for legal advice   This can be difficult to navigate if only one half   is paying the mortgage, and another is paying
                                            prior to signing contracts. If one of you has   of the couple is a named homeowner, because   the household bills, you may be worried about
       If you are separating from your partner, you   contributed  significantly  more  to  the  property   it leaves the other in a vulnerable legal position,   your rights to an equal share of the property if
       will likely have many concerns, including how   deposit, or perhaps one of you owns the   as they can’t evidence ownership of the property.   you haven’t paid an equal share of the mortgage.
       it might affect your status as a homeowner. It’s   property outright and the other is moving in, it   An agreement as outlined previously would help
       essential that you understand your rights, should   makes sense to look at what formal agreements   in that it would offer some certainty around   Legal experts state they would look at the
       the worst happen in your relationship – even if   you  should  be  making,  to  confirm  your  rights   the return of your money in the event of the   financial position of each partner at the beginning
       that seems impossible just now.      and protect your personal assets. Pre-nuptial   relationship ending, but it wouldn’t give you   of the relationship, and if there was a significant
                                            agreements aren’t just for the rich and famous!  ownership of the property.          economic imbalance that wasn’t evened out by
       The sad fact of the matter is that depending                                                                              another contribution, there may be cause for a
       on your circumstances, separating from  your   Update your will                      Can you buy out your partner?        claim for compensation. There is an expectation
       partner (whether you’re married or cohabiting)   Maintaining an up-to-date will is recommended   Something that may come up is the option   for evidence to be provided for this, which is
       can impact your rights to your home, and it can   for all adults, but especially those with assets or   for one partner to buy out the other partner’s   where  difficulties  may  arise,  and  one  partner
       be a difficult situation to resolve. However, with   children. If you are separating from your partner   share of the property. If one partner doesn’t   may find themselves at a disadvantage – so legal
       the right support and legal advice, there can be   and you have a will, you should update it to   want to leave the property, this is an outcome   advice is a must if you’re in this situation.
       a smoother way out of what is undoubtedly a   reflect your current circumstances. Just 40% of
       rough part of life.                  homeowners have an up-to-date will in place,
                                            so make sure you keep yours aligned with your
       As with many things, the recommended best   current situation.                           If  you’d like  to  know  more  about  what  happens  to  a  property  when  you  divorce  or
       course of action is to ‘prepare for the worst,                                           separate, we have a dedicated episode of The ESPC Property Show podcast, with expert
       hope for the best’ – which means that in an ideal   It’s important to remember that if you don’t   advice from legal professionals. Simply head to espc.com/advice/podcast for access to
       world, you and your partner would have thought   update your will, and something were to happen   the latest episodes.

   18  |  espc.com                                                                                                                                             espc.com  |  19
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