Wives (and solicitors) beware

January 2012

A case in the Court of Appeal last week has highlighted the difficult position that a wife finds herself in when asked to sign a mortgage over her home to secure money solely for her husband’s benefit. The case was also a warning for solicitors. Mrs Padden’s solicitor in Bristol had simply advised her “don’t sign it”. Nonetheless she went ahead and signed because her husband needed the money to pay back to people he had defrauded in his business. He said that this would keep him out of prison. Needless to say he was prosecuted and still went to prison and the mortgage wasn’t paid and Mrs Padden and her children lost their home. She then sued her solicitor.

Although Mrs Padden had signed the mortgage against her solicitor’s advice she nonetheless sued him for not giving her adequate advice. The first Judge in the Bristol County Court threw out her case straight away but three senior Judges in the Court of Appeal decided that the solicitor should have gone further to get Mrs Padden to question the circumstances she found herself in, in more detail. The Court said: “A solicitor ought to have emphasised to the wife the desirability of explaining why she was prepared to put her home and assets at severe risk merely to protect a husband who had turned out to be a fraudster.”

The Court felt that the solicitor should have advised Mrs Padden to question her circumstances more closely, to get more details about her husband’s activities and, presumably, to question whether she really did want to stick by him given that, once all the facts were known, he was almost certainly going to go to prison anyway.

The case highlights what a difficult position women find themselves in when they want to stand by their husband but put their own future, and that of their children, at risk. At Brain Chase Coles a solicitor dealing with the conveyancing would have put Mrs Padden in touch with one of our specialist family lawyers to discuss her circumstances and options in more detail to be better informed before she made her decision.