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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33314
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 am due to be officially divorced from my ex wife in approx

Customer Question

I am due to be officially divorced from my ex wife in approx 2 weeks now. I am worried as there has not yet been any financial settlement agreed.
She currently lives in my house with our 2 children and I give her £703 pcm for child maintenance. The problem is, I cannot afford the mortgage payments on top of this and my own living expenses. The mortgage is soley in my name, it is my house but she has a land registry on it to prevent me from selling it. She refuses to move out and my solicitor is far from helpful, saying this is a unique case. What can I do?
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 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.
How much is the house worth and how how much is outstanding on the mortgage?
What other assets and debts are there and what income do you each have?
What is meant to be unique about your case?
Clare
Customer: replied 2 years ago.

Thank you Clare.


In answer to your questions; The house is worth approx £135k. There is £105k outstanding on the mortgage.


I have assets of two cars - one is valued at £18k but has £7k outstanding on loan repayments and another vehicle worth £8k.


I pay our joint credit card debt which is now down to £2,250k and I also pay for a loan I took out to buy new windows for the property which has £4k left to pay.


My income is £60k p/a Gross.


I am unsure of my Ex's income as she has never really declared it all clearly. She attends college and has part time jobs as well as any benefits and child maintenance.


When I left the property, I took nothing but a few of my clothes in a bag. I left her with everything, including 2 cars, which she since sold!


My solicitor has explained this is a unique case because I own the house and her name is not on the mortgage, but she lives there.

Expert:  Clare replied 2 years ago.
Hi
There is in fact nothing unique about your case - it may not be the average but there are still many such cases and the courts are well used to them!
What is your net monthly income?
Clare
Customer: replied 2 years ago.

My net monthly income £3,500

Expert:  Clare replied 2 years ago.
Hi
And how much is the mortgage payment?
Clare
Customer: replied 2 years ago.

£575pcm

Expert:  Clare replied 2 years ago.
Hi
Are you paying any other "family" debts/?
Clare
Customer: replied 2 years ago.

No.

Customer: replied 2 years ago.

I did have to sell one of my cars in order to pay off our joint Tesco credit card of £3,500, but that is all paid off now!

Expert:  Clare replied 2 years ago.
Hi
So you have a monthly income of £3,500 and you pay out £1278 to your ex in total - is that correct?
Clare
Customer: replied 2 years ago.

That is correct.

Expert:  Clare replied 2 years ago.
Hi
What settlement have you offered your ex?
Clare
Customer: replied 2 years ago.

I offered and she declined 80% of the equity from the sale of the house.

Expert:  Clare replied 2 years ago.
Hi
How much spouse maintenance?
Clare
Customer: replied 2 years ago.

At present, Ex has not requested any spousal payments.

Expert:  Clare replied 2 years ago.
Hi
Has your solicitor suggested a better offer to try?
Clare
Customer: replied 2 years ago.

No, he hasn't!


She asked for an 80 / 20 split on everything (house and my assets) I explained in order to do this id need to sell the house. I requested that we get a valuation on the property and since then, nothing has been done as she explained she wants to stay in the property.

Expert:  Clare replied 2 years ago.
Hi
What is your pension provision?
Clare
Customer: replied 2 years ago.

£3,500 but she said she wasn't bothered about this.

Expert:  Clare replied 2 years ago.
Hi
I am concerned that your solicitor does not appear to have given you a realistic guide on settlement
The starting point for division of the assets is 50/50 and you will not be able to force a sale until your youngest child is 18 or your ex cohabits.
Even then there is likely to be at least a 60/40 division in her favour to reflect the fact that she has has the care of the children.
On top of this the substantial difference in your incomes means that you are undoubtedly liable for spouse maintenance - and as things stand it is likely that the family court would order an amount equivalent to the mortgage payment
If you wish to avoid that then you will need to offer her the house in full - subject to her obtaining your release from the mortgage as soon as possible - and in an - and taking over paying the mortgage
Please ask if you need further details
Clare
Customer: replied 2 years ago.

Thanks Clare.


If I continue to pay the mortgage would this been seen as spouse maintenance in the eyes of a court or would I also have to pay spouse maintenance on top too?

Customer: replied 2 years ago.

Thanks Clare.


If I continue to pay the mortgage would this been seen as spouse maintenance in the eyes of a court or would I also have to pay spouse maintenance on top too?


I'm also sure my Ex is cohabiting in our family home with her new partner. Does this change anything?

Expert:  Clare replied 2 years ago.
Hi
Yes the court will accept the mortgage payment in lieu of spouse maintenance
If she does have her new partner living there then you can insist on her taking over the mortgage sooner rather than later
Clare
Customer: replied 2 years ago.

Hi Clare,


 


In these circumstances, I am considering the following:
I will continue to pay child maintenance but at the reduced rate of £146 per week as advised by Child Maintenance Options. I would pay this weekly to fair in terms of five week months.
I will also continue to pay the mortgage, but will seek to remortgage the property to reduce the monthly cost of owning the home.
As I'm still paying into the property I would then put in a sliding percentage scale to encourage my ex-wife to buy me out sooner rather than later. For example, if she buys me out within 2years I would give her 90% of the equity, if she buys me out within 4years then I would give her 80% further reducing in 10% increments every two years.
As she is currently doing a degree course which will last three years from this year I feel it is reasonable to expect that she could be in a position to buy me out of the property within 4years meaning the most likely option that she would receive 80% of the equity.
Would this be a good settlement idea and would it be accepted in court.

Expert:  Clare replied 2 years ago.
HI
No I am afraid that this is not likely to be accepted by the Court - not would she be advised to allow the re-mortgage
Clare
Customer: replied 2 years ago.

I came up with that proposal for my ex's benefit as she said she wants to buy the house off me, but couldn't afford to do that for a couple of years yet. We cannot simply change the name on the mortgage as she does not work yet.


 


We had started the financial settlement procedure ie. 50/50, 60/40 etc etc, but ex insisted on 80/20 split on house and my assests. nothing less!


In order to do this, I would have to sell the house.


She later then changed her mind and said she wants to stay in the house with kids and new partner.


 


I am really lost on what to do now and how to move forward. I just want to move on with my life as she has done hers.

Expert:  Clare replied 2 years ago.
Hi
What does her new partner earn?
Clare
Customer: replied 2 years ago.

Unfortunately, I do not know.


 

Expert:  Clare replied 2 years ago.
Hi
If she wishes her partner to live there then she will have to buy out your interest in the property immediately unless she can show that there is a good reason why he cannot do so
Clare
Customer: replied 2 years ago.

How do I prove that he is living there?

Expert:  Clare replied 2 years ago.
Hi
At this stage it is simply part of the negotiations - you agree to an 80/20 split of the property with her taking over the payment of the mortgage immediately - and you receiving the lump sum when she cohabits or the youngest child is 18
Clare
Customer: replied 2 years ago.

If my ex was to claim spouse maintenance off me, how much would I have to pay?

Expert:  Clare replied 2 years ago.
Hi
Spouse maintenance is usually needs based - but the difference in your incomes means that between £400 and £500 a month could be awarded - unless she cohabits of course
Clare
Customer: replied 2 years ago.

Thanks Clare.


 


In light of all this, if I offered her the whole house,just signed it all over to her and she couldn't accept this because she can't get a mortgage herself.Or I sell the house and she gets 100% minus fees, would this be a suitable / reasonable offer. Would she be able to demand more? and would a court accept this?

Expert:  Clare replied 2 years ago.
Hi
I am sorry but you are missing the crucial point.
Unless she is cohabiting you cannot force the sale until your youngest child is 18
At that point the 80/20 split (or whatever has been ordered) will be
Until then she can remain in the house - although she would be expected to pay the mortgage
Clare

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