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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33293
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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Hi.. I need some advice on behalf of my husband ..My

Customer Question

Hi.. I need some advice on behalf of my husband .. My husband brought a property with his x and mother of his first child over 8 years old. the relationship broken down 2 years after moving into the property.This later resulted in him and his parents taking his ex to court to get back the deposit that was used to buy the house. He believe at the same point his was getting his name removed from the mortgage... anyway 8 years later and now we are married with our own childrens we want to buy but we found out his name was Never removed from mortgage.. We have tried speaking to his ex since last august in reference to getting my husband name off .But she doesn't have any interest in doing this,This includes tell her to make contact with the bank about re mortgaging the property in her own name .Even her brother has offer to put his name on the mortgage in order to remove my husbands name.. But she has done anything with this offer .. To make matters worst we requested copies of the mortgage statements and we will received the statement we found out in the early day of having the mortgage after my husband had moved out .She took 3 cash advances against the mortgage totally £50k without my husband permission ..


 


We have had an estate agent do a drive by valuation and we know there is around £40/60k  equity in the property if she was to sell 


 


Could you please give me some advice on what to do ? As it isn't right as my husband don't want any money from the property he just wants his name off

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.
What actually happened at the last hearing?
Clare
Customer: replied 2 years ago.

Hi clare,


 


there hasnt been a hearing.. we have tried dealing straightly with my husband ex with no joy..


 


We are now at the stage we are seeking legal advice


 

Expert:  Clare replied 2 years ago.
Hi
You referred to your husband and his parents taking his ex to court.
What actually happened then
Clare
Customer: replied 2 years ago.

Hi,


 


Oh she was ordered to pay back the deposit amount.We believe that's the reason she remortgaged the house first time around


 


 


 

Expert:  Clare replied 2 years ago.
Hi
How much is the house worth and how much is outstanding on the mortgage?
Clare
Customer: replied 2 years ago.
We believe the property is worth around £295k and the mortgage is £235k
Expert:  Clare replied 2 years ago.
Hi
May I just check - were they ever married?
Calre
Customer: replied 2 years ago.
No they weren't
Expert:  Clare replied 2 years ago.
Hi
I remain confused as to how the deposit issue was resolved without the mortgage issue also being resolved but clearly it was!
How much does a two bedroom property in the same general area cost to buy and can his ex actually afford to get your husband released from the mortgage?
Clare
Customer: replied 2 years ago.

The deposit for the house was brought to court as loan, That's why i believe the ownership of the house wasn't covered properly.


 


any way the deposit isnt the issue. She has been paying the mortgage by herself for the last 7 odd years. and if she sold the property there is equity in the property for her to rent or buy again ..


 


She is currently in a very good position


 


So i need to know what step we need to take in order to get his name removed from the property or to force a sale ?

Expert:  Clare replied 2 years ago.
Hi
Unfortunately because of the child matters are not quite as straightforward as that
How much does a two bedroom property in the same general area cost to buy - and best guess on her income
Clare
Customer: replied 2 years ago.

It's ok not too worry i have made an appointment to go see a solicitor .


 


Expert:  Clare replied 2 years ago.
Hi
To give you an overview the position is that there are two distinct issues here.
As a joint owner of the property your husband cannot force his ex to release him from the mortgage - but he can apply to the court for an Order that the property is sold.
HOWEVER as the father of the child he is under a duty to help his ex house the child until the child is 18 and his ex can apply to the court for an order under Schedule 1 of the Children Act allowing her to remain in the property until the child is 18.
If your husband wishes to challenge that he will have to be able to show that t=if the house was sold then his ex would still have enough cash and mortgage capacity to purchase an alternative two bedroom property.
The fact that her brother would assist is not relevant.
If there would be enough money then your husband will have leverage on his ex and can negotiate with her using Family mediation (www.familymediationhelpline.co.uk) to persuade her to avoid all the court problems by agreeing to gain his release from the mortgage
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 2 years ago.

Hi


 


You mentioned his ex buying a 2 bedroom property ?


 


I have a few questions what if there were enough cash for a deposit on another property but she wasn't credit worthy to get another property ?


would this be issue ?


 


Also she has another same sex child with another man.. would the judge also take this into court and deem a two bedroom property suitable ? Could it be a 2 bedroom flat not house ?


 


Having a quick look a 2 bedroom property ie house are around £250k in the same area she is in,This amount is more then what her current mortgage is ? would this be taken in an count ?


 


Does the property need to be in the same area or within reach of my husbands child's school ?


 

Expert:  Clare replied 2 years ago.
Hi
Does she live with her current partner?
Clare
Customer: replied 2 years ago.
We aren't not 100% sure. She moved him in straight after the second baby was born but the relationship broken down afew months later. He moved out but now they are back together.

Would it make a difference if he was living with her ?
Expert:  Clare replied 2 years ago.
Hi
Yes it would make a big difference
Does his ex actually go out to work - if so best guess on what she earns?
Clare
Customer: replied 2 years ago.
Yes. She does as far as we are aware she works 4 days a week. I would say she earns around 17k per year
Expert:  Clare replied 2 years ago.
Hi
The simple issue is can she rehouse her self and the child(ren)
Whether the problem is the lack of deposit or lack of mortgage capacity if his ex cannot get a new property then the court will not order a sale.
HOWEVER if her new partner is living there then the court will be less willing to leave matters as they are and may well order a sale regardless
Clare

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