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Buying property with a married partner

I enjoy my monthly phone in with St Alban’s Radio Verulam because the questions listeners send in really keep my on my toes. This morning was no exception, but sadly time constraints often prevent me from going into too much detail with my answers. So I thought it would be a good idea to do so here. Here is one of the questions I was asked on today’s show:

“My boyfriend is still married. All three of us now have our own houses. What advice can you give me if I was considering buying a house with my boyfriend in future? Can you foresee any problems that might occur if he remains married or if he wants a divorce?”

Since the abolition of legal aid, I suspect that a lot of people who are married and then split up have not yet resolved their financial position together. It’s a complex affair, going to court, and it’s hard to understand what each can claim and also how to settle. In most cases it isn’t a 50/50 split of capital and that’s all. So for many people who can’t or won’t pay legal fees, it can be easier not to bother and let things stay as they are.

Thus there are plenty of married but separated people out there with no financial settlement, entering into new relationships, expecting new partners simply to accept things as they are and invest with them in a new relationship which doesn’t yet include marriage but does include a financial investment of, say, a new property acquired together when there is no legal relationship between them.

In the above case we don’t know what the boyfriend or his wife are worth, what her “reasonable needs” are, how many children there may be and we can’t assess her claims against her husband. Or conversely his against her. That has to be done.

Let’s assume there are two children and a wife on a reasonable income or him helping her to pay the bills to stay in the house. He may live in a modest house which is why he wants his girlfriend to help him move up the ladder again.

At the very least there will be a liability for child support and, depending on both incomes, there may be a need for ongoing spousal support.  There may be a need for more capital to be paid by the boyfriend to the wife from the equity in his house to reduce her mortgage. Or it may be decided that the wife stays put in the family home and he won’t get his share until the youngest child finishes school.  It’s hard to say without more information.

But why would this impinge on the girlfriend?

She is pure gold for a wife. In a financial divorce case she could get dragged into the proceedings, her finances examined, and her assets used to reduce the boyfriend’s needs but wouldn’t be used directly to fund the girlfriend. Her contribution could be used as a good reason to reduce the boyfriend’s capital pay off from the family house.

If the girlfriend doesn’t care and still buys a house together with the boyfriend she needs to make sure the basis on which it is bought is fully recorded. They can buy as ‘tenants in common’ and in a Trust deed, set out the contributions each has made to the house and how the net proceeds of sale are to be divided so that if they split up she won’t lose out.

In the event of the boyfriend’s death, his share passes as he has left it by will and not automatically to the other, which would be the case if they purchased as joint tenants.

Of course, early death is unlikely but I have been involved in a case where the ex husband bought a property jointly with his new partner, and made no will. They bought the property as joint tenants and the new partner assumed that his share of the property would become hers when he died tragically in an accident. Although it did in law, it was not immune from attack. The ex-wife challenged the estate, which included his half share, on behalf of her two infant children.

He had life insurance which more than covered his liability to pay child support throughout their infancy, so the girlfriend kept his share and her home.

Overall, my view as a family lawyer is that involving yourself with someone who is still married but whose finances are not resolved is foolish. Even when they have been sorted it’s often not a good bet. The most common complaint is not about a house purchase, rather that their income and capital is being used to effectively prop up the finances of their partner who is (as they see it) paying through the nose for the first family. This feeling is felt especially if the first wife doesn’t (or won’t) work and there are children to maintain. There might even be a boyfriend in the background too – who stays with the ex-wife not quite long enough each week to be regarded as cohabiting. It’s a situation built for aggro that won’t go away and it will only get worse if the girlfriend and her married partner then start a family together.

If they hadn’t married and then split, the only liability he would have to her is child support and possibly his share of the equity in their house to be held on trust during the minority of the child. It would then revert back to him.

You have been warned.

It’s not good news to be involved with a person who is married to someone else. Unfortunately, however, the head doesn’t always rule the heart.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known family law solicitors and divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. Andy says:

    I do like the comment that you should not get involved untill your original financial situation is resolved…If ever..

    Yes, many people don’t bother and this is due to the escalating legal costs that in normal jo blogs working person world run into tens of thousands, so the finances would be used to carry on as it would be cheaper..
    Plus the trend of living together but not married begs the question it’s legally easier as cohabitation rights are not set in stone…

    Be aware,don’t get married and don’t have kids…

  2. Luke says:

    Overall, my view as a family lawyer is that involving yourself with someone who is still married but whose finances are not resolved is foolish. Even when they have been sorted it’s often not a good bet.
    I think you offer truly great advice to this woman Marilyn, but what does it say about a legal system that permanently f***s a man as a prospective partner after a failed marriage.
    I think it says a lot – and none of it good.
    Men, if you want to protect yourself, never EVER get married. Protect yourself at all times.
    You too have been warned…

  3. Andrew says:

    “Unfortunately, however, the head doesn’t always rule the heart.”
    The family lawyers would go hungry if it did!
    But joking apart: What this proves is how much a limitation period is needed. Three years as in p.i., from the nisi not the absolute so that there is no incentive to delay the absolute; extendable ONLY in the case where service of the petition was dispensed with and the respondent knew nothing of the divorce. No general “just and equitable” extension because the parties need to know when they can get on with the rest of their lives.

  4. Jason says:

    Well I am stuck in this situation, trying to get a divorce – it’s taken 5-6 years and counting….my estranged spouse just doesn’t want to sign the absolute. My current partner who I met 3 years ago and I have decided it’s time we moved on with our lives – I bought a house 2 years ago, and I want her to move in with me, she wants to contribute to 25% of the mortgage – and I think adding her as a tenant in common would be the right thing to do. However, I also have a fear that my estranged spouse might go after my girlfriends money – though she has quit her job and gone back to study a PHD so her income now is zero – would adding her to the deeds open a can of worms we don’t want?

  5. Portia says:

    I bought a house as a purchaser and the married person as a second does the marriage has a claim even if I’m the primary purchaser?

  6. AC says:

    Hi there, I bought a property in 2015 with my ex partner. I had considerable equity to bring to the property when we bought it and we unfortunately broke up. I met a new guy who had been separated from his wife for 4 years. My new partner remortgaged with me to buy my ex partners equity.

    We have been together 18 months and now his divorce is in progress. His ex wife is seeking a property adjustment order and a settlement or transfer of property in relation to the children. We had a declaration of trust set up to show that my partner has zero equity at present and he put zero deposit down. Does this protect us?

  7. Reshay says:

    My boyfriend and I are looking to buy our first home to make room for our new addition, but the only thing is that he got married at a super young age 5 years ago and can’t locate the separated spouse to serve divorce papers. How can owning people together affect me while he’s going through a divorce process? Would she be able to inherit my share if she wanted to if something were to happen to him before the divorce got finalized?

  8. Bob says:

    I’m a guy whose been separated with no legal document for over ten years with zero contact. New girlfriend wants to sell her place and chip in with me for a new house together . I’d have about 66% of that equity and she 34% with no mortgages going forward.
    I want to ensure girlfriends capital is not dragged into any divorce claim that might arise ( ringfenced) and she is fully aware that for various reasons I am still not emotionally ready to divorce, and my ex has never asked for one. There are no dependant children in any of this. On separation the marital home and all assets were split 50/50 .
    My girlfriend is divorced. I have no income due to health reasons, my girlfriend has a steady job.
    How do we do this and protect ourselves from any divorce claim that may arise without having to trace my ex ( I have idea where she is) and start divorce proceedings or wait for her maybe one day to decide she will ?


  9. Yvonne says:

    There should be a time limit on financial orders being decided post separation of 3 years, or the decision should automatically be referred to court.

    Some wives (and probably husbands too) continue to drag out divorce proceedings as they don’t want to face the financial consequences of divorce or want to continue to try to control their spouse and their life. Taking someone to court to obtain a financial order when they are unreasonable is prohibitively costly for many too.

    Its essentially financial control and there should be updates to legislation to penalise people who attempt to financially control ex partners long after splitting up.

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