Debts within marriage/ separation
- Thread starter danash
- Start date
I suppose it depends on what the money was spent on - was it e.g. rent, groceries, furnishing? All of which benefitted both? Or more personal - e.g. independent travel or funding an expensive hobby?
Every case is different but in some instances it is much clearer.
mf
Every case is different but in some instances it is much clearer.
mf
DrMoriarty
Moderator
- Messages
- 5,173
As with every other aspect of a separation, I'd urge the two parties to sort this out 'amicably' or through a common-sense conciliation process, because if it becomes adversarial the lawyers' fees (on both sides) may well dwarf the amounts initially concerned... 
Hi....all of the debts were on joint provision for the house / family - my partner is trying to disassociate herself with debts in my name only. I too want to keep the lawyers out.
Would the same principle apply in reverse for cash she holds in her personal bank accounts - do i have a lien on that ?
Would the same principle apply in reverse for cash she holds in her personal bank accounts - do i have a lien on that ?
DrMoriarty
Moderator
- Messages
- 5,173
Better ask your lawyer, danash - and sorry to hear it's already at that stage! Good luck to you both, and - for everyone's sake - please put the kids' interests first. They'll be around a long time after the two of you work out the financial details...
To the best of my knowlege if you are married, either or both partners can be persued by a bank or other creditor for repayment if one partner defaults.
All assets and liabilities are listed in regards to settlements.
You may find mediation helpful - the Family Mediation service is free; you'll find the number listed in the book.
For calculating maintenance, you'll find a good spread sheet on www.solo.ie
All assets and liabilities are listed in regards to settlements.
You may find mediation helpful - the Family Mediation service is free; you'll find the number listed in the book.
For calculating maintenance, you'll find a good spread sheet on www.solo.ie
DrMoriarty
Moderator
- Messages
- 5,173
Kathy Foley has a piece in the Money section of today's Sunday Times: http://business.timesonline.co.uk/article/0,,8214-1774021,00.html Nothing specific on the question you raised, but some useful references, including and [broken link removed], whose website publishes a number of FAQ-type [broken link removed] on legal aspects of separation.
Hmmm.. so consider this story (based on true facts)...
John and Mary get married and buy a house; both are working full time. John takes out a loan in his own name to buy all the furniture etc., for the home. Mary takes out a loan in her name and the pair go on RTW trip prior to settling down and starting a family.
Happily on their return Mary finds she is pregnant and has her baby; so far so good. Sadly however complications during the birth leave Mary with severe back pain and she decides not to return to work after her maternity leave.
John is still working and continues to pay off his loan; Mary no longer has an income and can't pay hers.
Now from what you are saying, Mary can simply default on her payments; Bank goes to court, gets a CCJ, calls in the baliffs to sieze property to the value of her debt.
"Oh no you don't" says John, "all the furniture in the house is mine - here's the proof of payment. The car is mine - here's my documents. The loan is unsecured, so you can't look to the Family Home. Hard luck - off you go".
Leaving aside any moral/ethical implications - if what you say is true, what's to prevent any married couple from doing what I just outlined?
-------------
Just to add, in the case I outlined, the couple actually re-scheduled their loans and repaid them normally.
John and Mary get married and buy a house; both are working full time. John takes out a loan in his own name to buy all the furniture etc., for the home. Mary takes out a loan in her name and the pair go on RTW trip prior to settling down and starting a family.
Happily on their return Mary finds she is pregnant and has her baby; so far so good. Sadly however complications during the birth leave Mary with severe back pain and she decides not to return to work after her maternity leave.
John is still working and continues to pay off his loan; Mary no longer has an income and can't pay hers.
Now from what you are saying, Mary can simply default on her payments; Bank goes to court, gets a CCJ, calls in the baliffs to sieze property to the value of her debt.
"Oh no you don't" says John, "all the furniture in the house is mine - here's the proof of payment. The car is mine - here's my documents. The loan is unsecured, so you can't look to the Family Home. Hard luck - off you go".
Leaving aside any moral/ethical implications - if what you say is true, what's to prevent any married couple from doing what I just outlined?
-------------
Just to add, in the case I outlined, the couple actually re-scheduled their loans and repaid them normally.
That situation is correct. I have received legal advice to the same effect.
A judgement cannot be enforced against the other spouse. I know of serveral cases where one spouse owns the house outright and the other spouse had €20k in debts, the banks could not put the judgments on the house as It was not the debtors property.
The only case where the other spouse can be persued is where the debts are in joint names or the other spouse was listed as being joint owner, ie 2 names on the deeds/house loan.
A judgement cannot be enforced against the other spouse. I know of serveral cases where one spouse owns the house outright and the other spouse had €20k in debts, the banks could not put the judgments on the house as It was not the debtors property.
The only case where the other spouse can be persued is where the debts are in joint names or the other spouse was listed as being joint owner, ie 2 names on the deeds/house loan.
Kildrought - now change your scenario - John and Mary break up and Mary decides not to address the debts built up by John on joint provision ( Mary sat on the furniture and slept in the bed ) - Can she simply walk away and leave John to pay the total amount - what about utility bills in one name only - can she walk away from that also ( please note the reverse could be the same i.e John may leave Mary with the same debts )
Is not the key point the use of the funds - ie joint provision ? ref mf1 ?
Is there a lawyer in the house ? what are the court trends in dealing with accumulated debts in separation - if we follow your scenario there would be an unbalanced amount of debt falling to the person whose name is on the account. I accept that if there is documented evidence of personal extravagance that that would not be enforceable.
Is not the key point the use of the funds - ie joint provision ? ref mf1 ?
Is there a lawyer in the house ? what are the court trends in dealing with accumulated debts in separation - if we follow your scenario there would be an unbalanced amount of debt falling to the person whose name is on the account. I accept that if there is documented evidence of personal extravagance that that would not be enforceable.
But one spouse can renounce their rights/interest in the house by effectivly selling their "share" to the other spouse for a nominal amount in my case €10. I got a solictor to draw up papers to put it in writing.
The reason I did it was, I did not buy the house, my wife bought the house, she pays the mortgage herself. I just happen to be married to her and live there as an effective lodger. The only way I will get the house is when I inhert it in her will.
The reason I did it was, I did not buy the house, my wife bought the house, she pays the mortgage herself. I just happen to be married to her and live there as an effective lodger. The only way I will get the house is when I inhert it in her will.
Leaving aside one's personal situation for a minute - I'd still be interested to hear from anyone who might work in the area of banking/loans/debt collection in regards to the scenario I posted above (Danash - haven't forgotten about you - have posted on rollercoaster).
Hi Kildrought, in an attempt to answer your query, I would firstly state that where one spouse doesnt guarantee the debt of another spouse, it would be normal that they would not be liable for that debt. Therefore if one spouse can prove that certain goods are theirs and not their spouses ( which said spouse is the debtor) then the sheriff cannot seize those goods.
Secondly in the scenario you mention there are two points to be made. Firstly certain items are exempt from seizure by the sheriff- these are the minimum necessities of life and means of earning a living. So you will find that items in the family home will to a large extent be exempt from seizure even where owned by the actual debtor. The second point is that in practical terms, when the sheriff calls to try to seize goods and the judgement debtor denies the goods are theirs, unless the sheriff has very good reason to believe this is untrue, they will not seize the goods as they would be liable to be sued for wrongful seizure.
Finally in practice warrants for execution by the sheriff are rarely enforced nowadays for the reasons outlined above.
The original poster was talking about debt in terms of an overall seperation- which as you will know is done normally by settlement or by court order. In these circumstances division of assets is arrived at by taking into account all of the assets and debts of the marriage and so is a completely different case. In that case mf1 has already answered.
Secondly in the scenario you mention there are two points to be made. Firstly certain items are exempt from seizure by the sheriff- these are the minimum necessities of life and means of earning a living. So you will find that items in the family home will to a large extent be exempt from seizure even where owned by the actual debtor. The second point is that in practical terms, when the sheriff calls to try to seize goods and the judgement debtor denies the goods are theirs, unless the sheriff has very good reason to believe this is untrue, they will not seize the goods as they would be liable to be sued for wrongful seizure.
Finally in practice warrants for execution by the sheriff are rarely enforced nowadays for the reasons outlined above.
The original poster was talking about debt in terms of an overall seperation- which as you will know is done normally by settlement or by court order. In these circumstances division of assets is arrived at by taking into account all of the assets and debts of the marriage and so is a completely different case. In that case mf1 has already answered.