Wednesday, March 26, 2008

Purchasing a Marital Home

Tom Quail, family law specialist, advises how conveyancers can avoid negligence claims from couples purchasing a matrimonial home in this month's edition of the Law Society of Scotland's Journal. This is because in Scotland assets accrued between the dates of marriage and separation form the matrimonial acquest, but the matrimonial home is treated differently. Someone who contributes personal funds from their pre-matrimonial assets is not guaranteed the investment back.

There are three options to protect an investment:

• Title could be taken in unequal shares.

• A second security could be taken over the property in favour of the husband [or wife].

• A pre-marriage contract or a cohabitation agreement could be signed, recording that the funds being introduced by the husband [or wife] are not matrimonial property.

None of the above are without problems ( the first two do not guarantee recoupment) and there is a conflict of interest in advising both husband and wife, so each party would need to take independent advice. It is suggested the way around that would be for the conveyancer to explain the options; terms of business should be sent to each client individually and these should be signed and returned. Advice is the same for cohabitants as that for a married or civil partnership couple.


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