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Joshua
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 26003
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I had a court order to transfer our property to my ex for a

Resolved Question:

I had a court order to transfer our property to my ex for a lump sum. He has paid the lump sum but I have found out the mortgage has not been transferd to his name only but also to his girlfriend's name as well, meaning he has remortgaged with her. Can he do this?
Submitted: 3 years ago.
Category: Family Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I clarify a cuple of points with you please. Do I understand correctly that this was a property you owned jointly together please and that pursuant to either a divorce or separation, you obtained a consent order from the court that you would receive a sum of money in return in part for transferring your interest in the property to your ex partner and come off the mortgage. Is that correct please?

Joshua :

If so, do I also understand correctly that you have transferred the title to your ex partner and have been removed from the mortgage?

Customer: Yes, we owned the property jointly and I had to transfer the property to him on payment of a lump sum following a court order. The transfer has not completed and l am currently on the mortgage waiting for the final letter transfer date.
Joshua :

Thanks. Have you yet signed the transfer deed to transfer the property to his name?

Customer: I have signed the deed but that was subject to him getting a mortgage.
Joshua :

Thanks. Finally you mention that the mortgage is in his girlfriends name. Do you refer to the present mortage or do you refer to his new mortgage that he proposes to obtain?

Joshua :

Would you like to continue?

Customer: To the probably the new mortgage. The mortgage provider is not willing to discuss with me. My question is is he able to do that when the court order said the property had to be transferred to his sole name. He gave me the impression he could get the mortgage on his own that is why I agreed to the transfer.
Joshua :

Thanks. The position is that your ex partner cannot insist you transfer the property other than to him. In addition he cannot add his girlfriend to your current mortgage. However once the property is transferred into his sole name (under the terms of the court order and having you paid you the sum ordered by the court) the property will be his and from there he can do as he wishes. One of the things he can do if he wishes is simultaneously on your transferring the property to him, is transfer the property into his and his grilfriends joint names and take out a new mortgage in their joint names.

Joshua :

He could decide to do this at a later date or he could decide to do this all simultaneously on the day you transfer the property to him - it may be that he has had to in order to obtain a mortgage or he may have decided to do so simply because he wishes to.

Joshua :

Do you have particular concerns about his taking a mortgage with his girlfriend?

Customer: I don't have a problem with that. In the first instance she is in the law profession so she must have helped him not to declare he is living with any one. All I wanted to find out was if it is possible for him to do that. I think he couldn't get the mortgage on his own that is why. My understanding was it had to go to him first and my name taken off then he can do whatever he wants. I didn't realise he could re-mortgage with another person to get my name off instead,
Joshua :

Your understanding is quite right - it does have to go to him and your name removed before anything else happens. However it is quite possible for him to then remortage and so on but he can do this simultaneously. So it is a two step process entirely as per your understanding where you come off first and then step two but these two steps can be done on the same day in effect simultansously

Joshua :

Is there anything above I can clarify for you any further?

Customer: So even if he couldn't get the mortgage on his own, he could still do that? Did he also had to write to me to say he could've get the mortgage on his own so was getting it with someone else?. Because the property should be sold if he was unable to get the mortgage.
Joshua :

Do you happen to have the exact wording of the relevant provision from the court order?

Joshua :

Don't worry if you don't have it to hand...

Customer: Not the exact words but that I transfer my beneficial and legal interest to him upon payment of the lump sum and subject to him securing a mortgage. If he is unable to pay the money or get the mortgage, the property should be sold. I know he had paid the money but it is the mortgage bit that I felt he should have secured that on his own first. That is why I want to know if he should have told me he could've get the mortgage on his own?
Joshua :

Thanks. Unless the order states that he must specifically secure a mortgage on his own (and I would struggle to see under what circumstances a court would impose such a condition) then there is nothing preventing him joining forces with another to secure a mortgage. I cannot see any reason he cannot do as he has done. As we discussed above he cannot ask you to anything other than transfer the property into his name and he must remove you from the mortgage but what he chooses to do after that or in order to achieve this is up to him and he can do such things simultaneously on the same day.

Joshua :

The above should not have any legal impact on you whatsoever though I appreciate your feelings on the matter personally.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer: I'm not sure how to continue with this because it seems the law says one thing but it doesn't have to be followed to the letter.
Joshua :

In general the law does not seek to restrict personal freedoms beyond which is necessary to balance rights of others. The court order you have requires him to remove you from the mortgage and take a transfer of the property from you. How he achieves this is a matter for him. Providin he removes you from the mortgage and pays you waht the court order provides you are owed this satisfies your legal rights. To dictate to him how he deals with what is then his property would be an unnecessary interference by the law.

Joshua :

How is that you feel you are penalised by his proposal?

Customer: I am not dictating to him about that. I felt that was what was stated in the order and that had to be followed. I didn't realise there could be a third party involvement.
Joshua :

Ah I see. Thank you.

Joshua :

In order to insist that he obtained a mortgage on his own the order would need to expressly state words along the lines that "subject that such mortgage must be obtained in the respondents sole name" or something along these lines. If it expressly stated that then this would be binding but for the above reasons (the law not unnecesarily restricting freedoms etc) I cannot conceive that a court order would provide for this. The purpose of the court is to balance your rights against his and so it will seek to ensure that you receive the money ordered and that you are removed from the mortgage and that if this cannot be achieved that the property must be sold. Your ex partner is free to employ any means at his disposal in order to achieve this and obtaining a joint mortgage is one of the options he would be free to follow unless you could point to an express condition such as the above which said otherwise in the order.

Joshua :

Is there anything else I can help you with?

Customer: Not sure where the court order is any but thanks
Joshua :

If you find it and it raises more questions, if I can assist any further please do not hesitate to revert to me. I will be happy to answer anything further on the above without further charge.

Customer: Ok thanks.
Joshua :

Best wishes

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