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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34273
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I have recently had a divorce matter finalised with DA and

Resolved Question:

I have recently had a divorce matter finalised with DA and accompanying Consent Order.My ex wife and 2 year old reside in the former marital home which is in my name and I solely pay the mortgage.I do not live there. A clause in the CO determines that I will transfer the property to ex wife on condition she settles existing mortgage ...effectively purchasing the property at the point of transfer.This was required to be completed within 56 days...my ex wife refuses to cooperate and the transfer has not taken place in that period.
Q. How do I enforce CO?...or do I need CO reviewed? ..what forms are required?..ultimately how can I resolve this matter if ex wife remains uncooperative? ..eg.can a sale be ordered?
Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
What is the exact wording with regard to the Mortgage?
Clare
Customer: replied 3 years ago.

Hi Clare, the relevant clauses are as follows:-


 


AND UPON the Wife undertaking to the court to discharge the existing mortgage secured onXXXXX Great Barr, Birmingham, B43 7 QU currently in the Husband's sole name on or before completion of the transfer provided by clause 1 below.


 


[ nb. The presiding judge without further consultation has crossed out "to the court" replacing it with "and agreeing" ]...even though it was a signed voluntary document by both parties.


 


 


Clause 1 reads:-


 


The Husband shall transfer to the wife within 56 days of the date of the Decree Absolute herein all his legal estate and beneficial interest inXXXXX Great Barr, Birmingham, B43 7QU subject to the mortgagae secured in favour of the Royal Bank of Scotland Plc.


 


 


[DA is dated 11th December 2013].


[Current mortgage product I have with RBS on the property].


 


Regards


 


PJ

Expert:  Clare replied 3 years ago.
Hi
Can your ex afford to obtain a replacement mortgage?
Clare
Customer: replied 3 years ago.

Hi,


 


Yes she certainly can afford the payment which of course will be supplemented by a generous maintenance payment.


 


I have continually tried to clarify the position directly with my ex and also with her .


 


Ex is not communicating and directing me to solicitors who in turn return me to the ex. I have been repeatedly told for months there is a mortgage offer but no body has any substantial proof.


 


She had an offer during the consent order but now I am told there is no finance in place following an enquiry by my conveyancing solicitor.


 


Put simply I cannot ascertain the exact position of my ex...whether it is a deliberate act or whether she cannot obtain finance for reasons outside of my knowledge. If that is the case she is maintaining the stance outwardly that it is a "work in progress"...my own thoughts are she has no intention of sorting this out as I am paying her mortgage throughout which is not sustainable.


 


What I do know is she agreed the CO , had finance in place and the deal has not been completed. Now there is no communication whatsoever.


 


PJ.

Expert:  Clare replied 3 years ago.
Hi
How much is the house worth and how much is outstanding on the mortgage?
Clare
Customer: replied 3 years ago.

On the open market it is worth £165 - £170 K.....mortgage is currently £132K.


 


PJ

Expert:  Clare replied 3 years ago.
Hi
How far overdue is completion of the Transaction?
Clare
Customer: replied 3 years ago.

56 Days from Dec 11th 13...Therefore on or about 4th Feb 14.


 


My conern is moving forward I don't believe there is finance in place.Afterall I have repeatedly asked for some confirmation or documentary evidence. None is ever forthcoming .Of course I would be prepared to accommodate a period of grace but I don't believe that to be the case otherwise that would be produced in support of keeping the deal afloat.


 


My view is I need some clarification. If there is no finance then we need to acknowledge this and think about plan B. However this will never be acknowledged which leads me to my original question. How do I pursue this information or assume there is no intention to meet the terms of the CO and seek appropriate sanction to resolve the matter.


 


PJ

Expert:  Clare replied 3 years ago.
Hi
On or about 4th March write to her solicitors saying that unless you hear from them within 14 days with a clear timetable for the completion of the transfer and your release from the mortgage then you will have no choice but to take the matter back to court and seek an order for the sale of the property and claim the costs form your ex
I suggest waiting until then because a 28 day delay is not unusual in these matters
If you do not receive a reasonable response within the time limit then you will indeed need to make the application to the court using a form D11 available here
http://www.familylaw.co.uk/system/uploads/attachments/0002/0835/D11.pdf
Please ask if you need further details
Clare
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