A few weeks ago my wife of 20 years told me she no longer loves me and we need to separate. During our married years, money was never plentiful because any chance that I got, I bought a new house for each of our children. She was never too keen on the idea, let them look after themselves was her motto.

To please her, I put the four houses in her name and she seemed to settle down. I continue to look after all the payments, insurance, tradesmen etc. and the rent goes into a joint bank account. She has her own bank account from her own job. When I asked my wife where she was going to live she said in one of the tenanted houses. I was disgusted as it’s currently rented to a lone parent with three kids on HAP and she said she would give them notice.

Can she throw out a tenant for that simple reason without my co-operation? The houses are all willed to our children. Can she just walk away without any concrete reason other than being bored and take a fortune in money and property with her?

Can she just walk away from the marriage without any concrete reason?

A judicial separation occurs when the couple cannot agree on the terms on which they will live apart after attending counselling/mediation. An application for judicial separation must be based on one of a number of specific grounds but the most popular is on the basis that the couple did not have a normal marriage relationship one year before the application for separation. Neither spouse has to be shown as being at fault. Applications are made through the Circuit Court or High Court and court proceedings are held in private.

Have I any ownership rights over the houses willed to our children?

You mention that you bought the houses in your wife’s sole name. You mention that there are mortgages on the properties that are nearly paid. It is not clear whether the mortgages are in both names or her sole name. If it is her sole name, she is obliged to continue making repayments. If it is in both names, you are both jointly and severally liable for repayment of those loans i.e. liable for the full amount of the loan if the other borrower doesn’t pay and assuming the bank have a charge over the houses, if you default the bank can take steps to sell the property.

Generally if property is transferred into another person’s name for no payment a presumption of a resulting trust arises. However this does not apply in the case of a gift from a husband to a wife. The so-called presumption of advancement presumes that where a transfer is made to a spouse a gift is presumed. However this presumption can be rebutted by contrary evidence. In other words if there is evidence that an advancement or gift was not intended, this evidence will override the presumption of advancement and the default position of the resulting trust will apply. i.e. that she is holding the house on trust for the benefit of the person who transferred it to her.

As she is currently the registered legal owner she may deal with the property as she likes and a purchaser for value without notice is not bound by your claim. As such if you are claiming a beneficial interest in the houses, you should seek to register a caution/inhibition on the Folio’s to put person’s on notice that there is a dispute over the ownership and/or they have to contact you for prior consent before dealing with the property. It may be necessary to issue legal proceedings in respect of the ownership of those properties to enable that caution/inhibition to be registered.

Does she have to stand on her own two feet or do I have to continue paying for her?

The spouse who is most financially sound is expected to pay maintenance to their dependent spouse and dependent child/children. Maintenance can be awarded to a spouse for their own benefit and/or for the benefit of a child who is under the age of 18, or 23 if the child is in full-time education.

Maintenance payments stop for the spouse if they die or remarry. Maintenance payments can be arranged voluntarily by mutual agreement between the spouses or if the parties cannot agree, it will be necessary to apply to the District or Circuit Court, depending on the amount of maintenance that is sought.

As regards how property is divided including the family home, the situation and the facts will be different in each case. The contribution of each party will be taken into account including the financial and the personal contribution of each party within the marriage and family, particularly where there are children. These can be direct (paying the deposit on the house or making mortgage contributions) or indirect (unpaid work in the landowner’s business i.e. helping out on the farm or paying household expenses). The length of the relationship and marriage is also a factor together with the ongoing financial prospects of each individual spouse.

Can she evict the tenant without my co-operation?

Assuming she is the registered owner, she would be entitled to serve notice on the tenant on the basis that she needs the property for her own use or for an immediate family member. The length of notice depends on the length of the tenancy. For example, if the tenancy was less than six months, 28 days’ notice is required, one to three years is 120 days and if the tenancy was more than eight years, 224 days’ notice is required.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising. E-mail aisling@agrisolicitors.ie

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