Sunday 20 August 2017

Can I cut violent ex out of share of house?

 

Email your questions to lmcbride@independent.ie or write to ‘Your Questions, Sunday Independent Business, 27-32 Talbot Street, Dublin 1’.
Email your questions to lmcbride@independent.ie or write to ‘Your Questions, Sunday Independent Business, 27-32 Talbot Street, Dublin 1’.

Muriel Walls: Partner in Walls & Toomey (www.wallsandtoomey.ie)

I left my husband several years ago because he became violent towards me in the home when we moved in together after getting married. We have one child. Neither of us has ever pursued a legal separation or divorce, even though we have been living apart since I moved out. I have rebuilt my life since and bought my own home. My husband has never paid maintenance payments for our child and he has had no contact with her - or me - since I moved out. I have a well-paid job, so am well able to provide for myself and my daughter. However, I am concerned about what will happen when I pass away. I would like my daughter to inherit my house in full - but would my estranged husband be entitled to any share in it if I passed? If so, how can I ensure that it would only be my daughter who would inherit the house? Mary, Gorey, Co Wexford

Although you and your husband have lived apart from each other for many years, you are still legally married to each other. One of the fundamental legal benefits of marriage is that a spouse is entitled to inherit part of the estate of the other on death.

Different shares will apply depending on whether you die testate (where you leave a valid will) or intestate (where you leave no valid will).

Should you die intestate, your husband is entitled to two-thirds of your estate (which will include your house) and your child is entitled to one-third of your estate. If you die testate, your husband is entitled to one-third of your estate and you may leave the remaining two-thirds' share to your child. You will see that it is vitally important that you make a will.

The other essential matter in your will is to appoint a person that you trust to be a testamentary guardian of your daughter in the event that you die before she reaches the age of 18 years. Appointing a trusted person will ensure that they have full parental rights to decide what is in the best interests of your daughter.

As you and your husband have lived apart from each other for more than four years, you should consider making an application for a divorce. This will end the marital bond between you and neither of you would be entitled to inherit from the other.

Furthermore, almost invariably on granting a divorce, the court will make an order under Section 18(10) of the Family Law (Divorce) Act 1996 preventing either party from making any claim against the estate of the other on death.

Pension worries after split

My husband and I were married for 40 years. We have six children who are now all grown up and who no longer live in the family home. When our youngest child left home, my husband and I split up and we have been living apart for a year now - though we are not separated or divorced.

My husband now lives in an apartment and I continue to live in the family home. I was a full-time stay-at-home mum for most of my married life, but when my husband moved out I took up a part-time job.

The mortgage on the home is paid so I am able to get by financially - but I am worried about what will happen to me when I retire, as I'm pretty sure that I would not qualify for a State pension in my own right.

My husband will qualify for the State pension and he will also have his work pension. Will I be entitled to a share of any of my husband's pensions or do I need to take some action now to ensure that I do? Brenda, Tralee, Co Kerry

Many couples live apart from each other without any formal legal arrangements. Separations often start in this way. At some stage, however, it is important that a legal agreement is drawn up - or that the court decides the terms on which you and your husband are to live apart from each other. Proper financial provision will need to exist or be put in place for both spouses.

The focus will be on you and your husband's needs as the children are all grown up. Decisions will have to be made in relation to the family home: that is, who will occupy it, and who will own it - or whether it should be sold and how the proceeds of the sale should be divided.

Maintenance will have to be considered - or as you and your husband are near retirement age, a pension-adjustment order can be sought which can allocate part of your husband's work pension to you.

This can only be done by court order. In the event that your husband predeceases you, you will be entitled to a State widow's pension.

Buying out share of home

My husband and I are getting divorced. We have four children - and they all still live in the family home. As part of the divorce, my husband will be leaving me with the family home - which is worth about €500,000. He is only agreeing to leave me the family home if I buy out his share of the home.

We have no other assets apart from the family home - and my husband wants to be able to buy a property that he can live in after the divorce. Although I have a job, I don't have much savings. Do the banks offer loans today to finance buyouts such as this? If not, how else could I raise the money to buy my husband out of the home? I'm reluctant to sell the family home. Lisa, Templeogue, Dublin 6W

On separation or divorce, there are many options for the family home and these tend to focus on the following four options. First, where the family home is sold and the proceeds are divided. Second, where one spouse buys out the interest of the other. Third, where one spouse transfers his or her interest to the other in exchange for something else. Fourth, where one spouse has the right to live in the family home for a limited period of time.

Sometimes the solution can be a mix of the above. If your husband wants to be bought out, this suggests that he knows that it is good for the children that they stay living in their family home for as long as possible. However, he wants to have a home of his own and needs his share value of the family home to start again.

You don't say if you have a mortgage so it is presumed that you do not - or that it is very small. On the straight maths, half the current value of the family home at €500,000 is €250,000. Can you raise €250,000 on your own? Any financial institution will look at your income, bills, the security of your employment, your age, and the value of the property.

In recent years, the banks became more focused on a borrower's ability to pay the monthly repayment - than on the value of the property. Age is also a critical factor as a mortgage term will generally not go beyond age 65. It is probably unlikely that you will get a mortgage of €250,000 on your own.

You and your husband could consider whether or not his getting a smaller capital amount of say €120,000 would allow him to get a home of his own. This represents a quarter of the current value of the home. You could both agree that the family home is sold a number of years hence - say in five, seven or 10 years, depending on the ages of your children. Your husband could get the balance of what is due to him at that stage. The Family Mediation Service, which is a free service, helps couples grapple with these problems. (See www.legalaidboard.ie).

Email your questions to  lmcbride@independent.ie or write to  'Your Questions, Sunday Independent  Business, 27-32 Talbot Street, Dublin 1'. 

While we will endeavour to place your questions with the most appropriate expert for your query, this column is not intended to replace professional advice.

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