Q&A - Can we separate and still mortgage the family home to buy a 2nd home for my husband to live in?

14/12/2015

Q:  My husband has had alcohol and depression problems for years. Our children are now approaching their teens and starting to question his behaviour. He has agreed to separate but won’t discuss divorce at this stage. The family home is worth £500k.

We paid off the mortgage with his parental inheritance but he has agreed the children and I can stay in the house so they don’t have to move schools. He is 57 but I am only 48, so I can still get a mortgage. We plan to mortgage the family home to fund the purchase of a smaller house for him to live in, with both houses jointly owned. Is this correct or is there a different way of doing it?

A:  Until you and your husband have exchanged full and frank financial disclosure and had the opportunity of having legal advice, you should not do anything.

The starting point following separation is for there to be full disclosure of all finances to include income, capital and pension provision. This will give you a sense of what is in the ‘matrimonial pot’ and will enable you and your lawyer to work out how to split all the assets in a fair way. Interim and piecemeal arrangements should be generally avoided.

Many couples now benefit from entering into family mediation to discuss financial matters once they have separated. Mediation can be a cost effective and amicable way to resolve matters.

Legal advice should always be sought alongside mediation and following any separation, particularly when finances are involved as there are many potential consequences and pitfalls. You may also need advice from an accountant in relation to a possible Capital Gains Tax liability if properties are being sold and/or transferred.

You should seek advice in relation to the separation generally, and divorce, despite your husband’s unwillingness to discuss divorce.

Linda Hill

Linda Hill

Senior Solicitor

Linda Hill is based in our Oswestry office and was previously a partner with Stevens Lucas.

Nathan Wright

Nathan Wright

Partner

A Partner specialising in Family and Matrimonial Law