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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33537
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 Mac. I'd like to pick up this old conversation you had with

Resolved Question:

Hi Mac. I'd like to pick up this old conversation you had with my partner some months back. Are you available to discuss it, and can you see the thread I'm referring to?
http://www.justanswer.co.uk/family-law/82kpp-friend-going-difficult-time-separated.html?utm_source=addthis&utm_medium=button&utm_campaign=addthisqapage2#.VJu9SYzM5U4.gmail
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.
I have reviewed the previous question - can I assist in any way?
Clare
Customer: replied 2 years ago.

Hi Clare

You and I also interacted before on this same thing and here is the link http://www.justanswer.co.uk/family-law/821ld-hi-there-i-separated-wife-moved-months.html?al=1&r=emm%7Cexpert_follow_up_ppq_upsell_uk%7C40395297%7Cln=viewabox_ln&rpt=1020

but N's conversation with Mac was more recent.

Updates:

1. E agreed to me divorcing her for her unreasonable behaviour, and DN was supposed to have been issued on 23/12/14 (not sure if it has)

2. She has taken out a land charge (some months back) preventing me from trying to sell the house

3. I have continued to pay the mortgage (and help with other things too)

4. She has signed up for the various benefits she's entitled to incl JSA.

5. She has issued a request for Child Maintenance effective from 27/12/14

5a. The CMS are sending me a form to apply for a reduction as the amount's unaffordable.

5b The building society are will to discuss a reduction in payments if 5a doesn't work.

6. But both to solve this problem, and in the long term, I would like her to leave the house and I sell it. She can get housing benefit and I would happily pay her deposit and removal expenses.

6a. E won't discuss this as an option at all.

Also: I have an extremely expensive solicitor waiting on me to start sending things for the "full and frank declaration". It seems to have cost a couple of hundred pounds just to send me a standard letter (with E's name found/replaced in the doc).

I have a £250 still on account with the solicitor. I am worried that this and a lot more money (which I dont' have) is going to get gobbled up in endless to-ings and fro-ings with which E simply won't engage, until it gets to court and she is told to.

That being the case, would it be simpler to handle it myself? I am also in touch with the ASP and they can provide a "Mackenzie friend" (?) for the day in court.

Cheers

S

Expert:  Clare replied 2 years ago.
HI
To save flicking back can you confirm
The value of the matrimonial home and the amount outstanding on the mortgage
What is your gross income and how much is the CMS assessment
Clare.
Customer: replied 2 years ago.

The value of the matrimonial home

£280k?

and the amount outstanding on the mortgage

177.5k now to repay

173.8k to repay in/after March 2015 (sale before March 2015 could never happen anyway)

What is your gross income

$43.3k pa

and how much is the CMS assessment

5924 pa

Expert:  Clare replied 2 years ago.
Hi
How old are the children?
Clare
Customer: replied 2 years ago.

I. is 10. O. is 16 in January.

Expert:  Clare replied 2 years ago.
Hi
For clarity you are having to pay the mortgage AND the Child Maintenance assessment - is that correct?
Clare
Customer: replied 2 years ago.

I am currently paying the mortgage. Now it seems they (E, and the CMS) want me to pay the CM on top. (Plus my rent and living expenses :O)

Expert:  Clare replied 2 years ago.
Hi
How far have the financial negotiations reached with your ex - has family mediation been attempted?
Clare
Customer: replied 2 years ago.

We had a number of sessions with the mediators. the first was just over a year ago and the last in I think March. E didn't engage with the process and some sessions ended with her being hysterical, unfortunately. She has just one more session available on her legal aid, i think (and I am still paying my costs off).

The only conclusion - from the CIM - was that the kids want to stay in the house and are not especially bothered about contact with me. I would like to maintain contact, but setting up each and every visit is a struggle. They have been with me overnight about 5 times in the 18 months since separation, and a further maybe 10x day meetings for lunch/outings.

She was at one point trying to poison the well, but seems to have eased off a little in recent months.

Expert:  Clare replied 2 years ago.
Hi
The first point that you need to accept is that the court will not Order a sale of the property until the youngest child is 18 UNLESS your ex is not able to pay the mortgage
It is also clear that there will be no negotiated settlement and accordingly your only option is to obtain a court order which confirms that your ex must use the child maintenance to pay the mortgage on the property - (or at least half of it)
It is clear that there is no point in returning to mediation - so the sooner the Financial Application is issued and you are locked into the court timetable the better
You can find the forms and the starting information here
https://www.gov.uk/money-property-when-relationship-ends/apply-for-a-financial-order
Please ask if you need further details
Clare
Customer: replied 2 years ago.

She can't afford the mortgage because she has no income except benefits, so I think the court can order the sale, right?

If I get the court order as you describe, I will still be paying the mortgage in full PLUS half the 5924, won't I? That's simply not affordable on my salary and I guess the court would accept that. Also my contract ends in July and I could be unemployed then anyway.

I suppose what I really need to know is this: If a negotiated settlement is impossible, do I still need to go through the motions of trying to negotiate so I can show the court I have *tried* to negotiate? My understanding is that that is what the court wants to see.

If yes, do I need to complete the full and frank declaration, or will a simple email setting out my terms, which she would presumably either reply to with a refusal, or ignore, suffice? The terms would be very reasonable, and leave her better off than if she insists on staying in the house...

Expert:  Clare replied 2 years ago.
Hi
I am afraid that if she can manage to pay the mortgage using her Child Maintenance then no a sale will not be ordered
You will have to pay your child maintenance no matter what. The aim will be to get a Court Order confirming that she has to pay the mortgage from it.
This will almost certainly also involve the property being transferred into her name (or at least a Declaration of Trust being drawn up to that effect) with you have somewhere between 30% and 40% of the equity when it is sold when your youngest turns 18)
Since Mediation has already failed there is no reason why you should not make the financial application immediately - the Form E will have to be completed in any event
Clare
Customer: replied 2 years ago.

Thanks Clare. I've numbered points, if you could use in your response.



  1. I think we have a misunderstanding. She cannot "afford" to pay the mortgage using the CM. The mortgage is 1205 a month and the CM about 500. She can only afford it if I pay the mortgage in full (or more accurately, I pay 705 to the b/soc and 500 to her which she has to forward in full to the b/soc). Can the courts order me to pay the mortgage? This is going on for half my net salary (and leaves us both worse off than if she moved out and claimed housing benefit).

  2. Do I definitely have to complete Form E then? My understanding was that IF we could reach an agreement (eg by me offering terms too good for her to refuse) then there is no need to complete it.

  3. Does she also have to complete Form E before settlement can be reached? She has no money for a lawyer and won't be able to do it properly herself as she needs help with English. Can she delay the proceedings by not filling it in?

  4. I have checked with the building society and they say the house cannot be put in her name. The house and mortgage are currently in my name, she has no job or credit rating and cannot take over the mortgage. The mortgage holder has to be the same as the house owner, according to the building society. Are you saying that the court can override that and put the house deeds in her name while I have to pay the mortgage?

Expert:  Clare replied 2 years ago.
Hi
How much does a cheaper three bedroom property in the same school area cost to buy?
Clare
Customer: replied 2 years ago.

190-235.

Expert:  Clare replied 2 years ago.
Hi
Interesting - what about local Shared ownership schemes?
Clare
Customer: replied 2 years ago.

Hi Clare

As I said she has no income other than benefits, no job and no apparent interest in finding one, so ineligible for any mortgage schemes. She can't move to another owned house, unless I apply for the mortgage, and I doubt that anyone would give me a mortgage for a house where I'm not going to be living.

For the shared schemes, you have to be a household, and since I'm not part of that household yet the only contributor I think that won't work either.

Our only options are (a) she stays in the house, I pay for everything, and we waste a massive amount of money for years to come, and (b) she moves into the rented sector and starts to claim HB asap. It's really the second option that I want to pursue vigorously, and preferably through negotiation and no Form Es.

If you could answer the numbered questions above that'd be really great. Thanks!

Expert:  Clare replied 2 years ago.
Hi
If she received all the proceeds of any sale then a Shared Ownership scheme would be viable given the figures you quote - and from what you say this is in fact the most likely option
In answer to your points.
1. Given that the mortgage is in fact a little less than your net salary it is a possibility. On balance it is not necessarily probable - but possible none the less
2.Even if there is a Consent Order you will have to make basic disclosure - and with her poor English the Court may well have concerns
3. See above
4. In fact the house can be transferred into Joint names with the agreement of the Building Society, and in any event the Court can indeed Order that whilst the property remains in your name you hold it for the benefit of you and your wife - or indeed your wife alone.
Clare
Customer: replied 2 years ago.

Hello again

1. What is basic disclosure please? Does that involve both parties completing Form E and all the annexes, or is it something simpler?

2. What concerns might the court have vis a vis her English? I speak her language, and the court will provide an interpreter won't it?

3. The b soc have said that they would not agree to transfer the ownership into her name or our joint names: I have asked already. Are you saying that the court can *make* them agree?

3a. If they don't, can the court make me carry on paying the mortgage indefinitely (or until the youngest is 18)?

3b. What if I lose my job and can't afford it? As things stand, my employment contract runs out in July, and I don't know what will be happening after that: I don't think it will be extended.

4. You seem not to want to engage with my suggestion that she move into the rented sector. Is this because the court will not entertain such a possibility when it makes its order?

Happy New Year!

Expert:  Clare replied 2 years ago.
Hi
1. This form will need to be completed
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d081-eng.pdf
2. The Court will wish to be certain that she understands what her rights are and has decided to accept the offer based on full knowledge of the situation. You are not a suitable interpreter and no the court will not provide one - she will have to provide the money for one
3.The Court can Order that you hold the property on behalf of either both of you or just her although the property will remain in your name
3a. Yes
b At that point the property may have to be sold
4. If there is any chance of your ex remaining in her current home or purchasing another in her own name - using the matrimonial capital and a shared ownership scheme then that is what the court will look at If the property is sold then she will receive at least 50% of the equity
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33537
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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