Property issue after non marital split

zippyddog

Would anyone be able to advise me on a Family Law/Property Issue?

My ex-partner and I (not married) split up 2 years ago when I
discovered that she was having and is still having a relationship with
a third party.

We have two children both under 18. We also have a house which is in joint names. I have always paid the mortgage in full and continue to do up until recently. I have given my ex-partner ample time to sort out finances to take over the mortgage, but she had done nothing!

I moved out a year ago. She now cohabits with her new partner in the house.:mad: She is refusing to budge on the house situation and she will not give an indication as to what her plans are in her new relationship. I am now faced with initiating proceedings to have the property sold and the assets partitioned.

Has Anybody else found themselves in this sort of situation?
What sort of outcome can I expect?

dermot_sheehan

Should seek professional advice. Also might want to look at this thread here
http://www.boards.ie/vbulletin/showthread.php?t=2054936665

General rules, if someone holds legal title to a property purchased with someone else's money, they hold that property on trust for that person. This is called a resulting trust. There is a rule called the presumption of advancement that applies to a married couple that the husband when transferring property to his wife, it is presumed that he does so absolutley, so in a marital relationship there is a presumption that no resulting trust arises.

Of course in this case the couple were never married, if the couple were married dissolution of marital assets would be done according to the rules of the family law act 1996 and the requirement that proper provision be made. In this case with no marriage, the courts would ahve to use the rules of equity.

Is the other part of the couple entitled to a proportion of the property? How much of it does she hold on a resulting trust? Case law has stated that if she made a direct financial contribution towards the property she is entitled to a property interest proportional to her contribution. For example if the property was worth 100,000 in 1990, and she contributed 10,000 to the purchase price, she'd be entitled to 10% of the value of the property today. Case law has also indicated an indirect financial contribution would result in a property interest. So if for example the other partner contributes 500 a month for the couple's general expenses, and this allows the other partner to pay more for the mortgage, she is entitled to an interest in the property.

Case law also states that if she made a direct non-financial contribution (e.g. she carried out works on the property) she is entitled to an interest. Case law indicates however that indirect nonfinancial contributions (e.g. staying at home to care for kids to allow other partner to work) does not result in a propertrial interest.

This as you can guess is a rather complex area of law.

zippyddog

When you ask Is the other part of the couple entitled to a proportion of the property?, I'm assuming that you mean my ex-girlfriend and not her new partner. I guess on paper she is entitled to a 50% share on the basis that she is named on the deeds as a joint owner and is also named on the mortgage.

How much of it does she hold on a resulting trust? . I guess she holds nothing on Resulting trust as she never made a direct financial contribution towards the property and anything she may claim as an indirect payment would be negligible because I paid for everything!

All I want to is to have my name taken off this mortgage so that I can get on with my own stuff, get my fair share of equity and pay Maintenance for the children.

I moved out of the house a year ago. She remains there with the children.
She runs a business from the house, funded by a re-mortgage which I pay.
She drives a car, funded by the same re-mortgage...which I pay!

She Claims she cant get a mortgage.

I have been told (legally) that the only way forward is to apply for partitioning.
She thinks things will be left the way they are because we had 2 children together!!

maidhc

zippyddog wrote:

How much of it does she hold on a resulting trust? . I guess she holds nothing on Resulting trust as she never made a direct financial contribution towards the property and anything she may claim as an indirect payment would be negligible because I paid for everything!

Not be construed as legal advice, but the point gabhain is making is that irrespective of whether there is joint ownership or not, it doesn't mean she is entitled to anything if you paid for the house,

A good solicitor will outline your options, which he has, and this, i'm afraid is the only way for you to proceed.

dermot_sheehan

The law presumes that you do not give property away. Therefore she holds the land for your benefit. You need a good solicitor to get a declaration she holds the land on a resulting trust, an order transferring the legal interest she holds to yourself, and an order for possession.

An order for partition is only relevant if she has a property interest in the property and she is entitled to a share of it. In this case she holds the legal interest in the property on trust for you so she is not entitled to a proportion of the property.

maidhc

gabhain7 wrote:

An order for partition is only relevant if she has a property interest in the property and she is entitled to a share of it. In this case she holds the legal interest in the property on trust for you so she is not entitled to a proportion of the property.

She is a joint owner at the end of the day though. Unless the OP is in the mood for the High Court, partition (and sale) is pretty much where it is at.

seamus

You should all know better.

OP, please read the charter in relation to seeking legal advice on this forum.

If you would like me to move this to new forum, let me know, but it's locked for now.