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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33290
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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Can a financial Court Order forcing me to sell the family home

Customer Question

Can a financial Court Order forcing me to sell the family home, be overridden, if I can pay off the mortgage?
Submitted: 1 year ago.
Category: Family Law
Expert:  Clare replied 1 year 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 does the Order say about how the sale proceeds are to be distributed between you and your ex?
Clare
Customer: replied 1 year ago.
Clare, there are three properties involved and the Court Order reads as follows:-
IT IS ORDERED THAT
1. The parties shall by .10.1 place f, XXXXX XXXXX on the market for sale and the property shall be sold by private treaty at the best obtainable price as soon as possible after 24.11.14.
2. The parties shall have joint conduct of the sale.
3. The net proceeds of sale of XXX XXXXXXXXX XXXX, XXXXX XXXXX (after repayment of the mortgage and payment of the costs of sale) shall be divided as to £100,000 to the Respondent the balance to the Applicant.
4. The Respondent shall by 9.9.14 transfer to the Applicant all her interest in***** Enfield on the basis that she is to be released from her covenants under the mortgage secured on the property.
5. Contemporaneously with the sale of XXX XXXXXXXXX XXXX, North Weald, the Applicant shall transfer to the Respondent his interest in XXX XXXXXXX XXXX XXXXXX, XXXXXXX on the basis that he is to be released from his liabilities under the mortgage secured on that property.
6. In the event that the Respondent is unable to procure the release of the Applicant from the mortgage on XXX XXXXXXX XXXX XXXXXX, paragraph 5 of this order shall not have effect and the said property XXX XXXXXXX XXXX XXXXXX shall be sold by private treaty at the best obtainable price and the entire net proceeds of sale after repayment of the mortgage and the costs of sale shall be paid to the Respondent.
7. It is directed that until transfer or sale of XXX XXXXXXX XXXX XXXXXX
pursuant to paragraphs 5 and 6 of this Order, the Applicant may continue to collect rent for that property on condition that he applies the same firstly towards the mortgage instalments and property insurance for that property and secondly towards the mortgage instalments and building insurance premiums in respect of XXX XXXXXXXXX XXXX.
8. From the date of this order and until 9.9.14 the Applicant shall pay to the Respondent periodical payments equivalent to the difference between the net rent received from the tenants of XXX XXXXXXX XXXX XXXXXX (i.e. the rent received after deduction of the monthly mortgage instalments and property insurance premiums) and the amount of the monthly mortgage installments and buildings insurance premiums due on XXX XXXXXXXXX XXXX, which liability he may discharge by payment to the mortgagee of XXX XXXXXXXXX XXXX and to the insurance company.
9. From 9.9.14 and until sale of XXX XXXXXXXXX XXXX the Respondent shall be responsible for making up the shortfall on the monthly mortgage instalments and buildings insurance for XXX XXXXXXXXX XXXX, in the event that the mortgage debt on that property increases by reason of her falling into arrears, the Respondent shall pay to the Applicant out of her share of the net proceeds of sale (calculated in accordance with paragraph 3 of this order) a lump sum equivalent to the amount by which the Applicant's share of the net proceeds of sale has been reduced as a result of such arrears.
10. The Respondent shall by 9.8.14 permit the Applicant to collect from XXX XXXXXXXXX XXXX the wooden trunk containing photographs, his DVDs, pine wardrobe, his record player and documents in the conservatory, the metal cabinet with his files, his tools and books.
11. Upon compliance with paragraphs 1,2,3,4,5, and 6 of this Order all claims by either party against the Order for periodical payments, secured periodical payments, lump sum and property adjustment Orders and pension sharing and attachment Orders shall stand dismissed and neither party may make any further application pursuant to S.23 Matrimonial Causes Act 1973 or apply for an extension of the term of the periodical payments Order set out at paragraph 8 of this order and nether party may apply under S.2 inheritance (Provision for family and dependants) Act 1975 for provision out of the estate of the other.
12. As from 1.7.14 the Applicant shall be consent pay the Respondent periodical payments for Jessica XXXXX-XXXXXXXXXX at the rate of £240 per month until she attains the age of 18 or ceases full-time secondary education (whichever is earlier) or further Order of the Court.
13. If further directions are needed for implementation or timing of this Order, either party may apply to the Court for further directions.
14. No order as to costs.
All three properties were in both our names. At present, Applicant's property

XX XXXXXXXXX XXXX, XXXXXXX

has been transferred back to his sole name; XXX XXXXXXX XXXX XXXXXX, Enfield is still in the process of being transferred back to my name and XXX XXXXXXXXX XXXX is sold, subject to contract.
I was unemployment as a housewife and mother when this Order was made. I had a tenant that stayed for three months. I have now been employed for one month, 19.5 hours a week as I am the sole carer of my daughter.
The buyers of XXX XXXXXXXXX XXXX are cash buyers.
To date I am receiving intimidating texts from the Applicant on a regular basis, is there anything I can do to protect myself? Two years ago, I was granted an Occupational Order as a result of an abusive relationship.
Does the Order restrict me from paying off the mortgage or proving that I can now afford the mortgage repayments? My income will come from work and XXX XXXXXXX XXXX XXXXXX, rental income. Once XXX XXXXXXXXX XXXX is sold, I will be priced out of the area where my daughter attends school, activities, church and where I now work.
With regards
Angela XXXXX
Expert:  Clare replied 1 year ago.
Hi
Please confirm the current equity in the property that is for sale
Clare
Customer: replied 1 year ago.

£365,000 purchase price in 2009

£245,000 outstanding mortgage

£385,000 sale price subject to contract

Expert:  Clare replied 1 year ago.
Hi
So can you afford to take on the mortgage plus pay your ex £35,000?
Clare
Customer: replied 1 year ago.

Hi Clare,

I paid for an urgent reply, two weeks ago. It is now too late, as I had to sign the transfer deeds.

I would like to receive a refund of £36, as my question was not answered urgently and to date, has still not been answered.

With regards

Angela XXXXX

Expert:  Clare replied 1 year ago.
Hi
My apologies - it was not possible to answer the question without the further information.
the answer was that you could only have kept the house if you were able to obtain your ex's release from the mortgage AND pay him the £35,000
I will ask Customer Services to deal with the refund for you
Clare

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