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UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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My husband and I have seperated after 17 years of marriage.

Resolved Question:

My husband and I have seperated after 17 years of marriage. We have a joint mortgate on our family home and 3 children aged 9, 10 and 15 who live in it with me. My husband has moved out 6 months ago. He now want to sell the house. Do I have to sell?
Submitted: 1 year ago.
Category: Family Law
Expert:  UKfamsol replied 1 year ago.
Hello and thanks for your question.

I need a bit more information to be able to answer:

Are either one of you about to start divorce proceedings?
How much is the house worth (approximately) ?
Is the house as well as the mortgage in joint names?
How much is the total mortgage on the house (approximately)?
Apart from the house and the mortgage, are there any other assets and/or debts?
What is your annual income?
What is your husband's annual income?
Customer: replied 1 year ago.

We are about to start divorce proceedings..a mutual agreement.

The house has been valued at £1.1 million.

The house is in joint names as is the mortgage and our mortgage is £180,000.

We have no other assets

I work part time 30 hours per week in a doctors surgery for £10.00 per hour.

My husband is a builder and runs his own company. His esrning are often not declared so I have no idea what his income is.

Hope this is what you need

Expert:  UKfamsol replied 1 year ago.

Hello again & thanks for the extra info.

As the house is in joint names, you do not have to sell the house – unless either there is a court order, or you agree.

When a couple divorce, if they cannot agree how the assets of the marriage should be divided, either one of them (regardless of which files the divorce petition at court ) can apply to the court to ask the court to decide how the assets should be divided.

Both parties are required to give the court full details of all their finances in the 28 page financial statement called a Form E. You each get a copy of the other's Form E.

The court starts from the position that the assets should be divided 50:50, then considers reasons why that should not happen eg if one party has a significantly lower income than the other and/or if they are to provide a home for dependent children.

In your case both of these apply.

Your annual earnings amount to £10 x 30 x 48 = £14,400. Your husband's annual earnings must be about £60,000 or more or he would not have qualified for a mortgage of £180,000 ( 3 x £60,000 = £180,000).

The court must give first consideration to the needs of the children, which means that the court is reluctant to disrupt children from their current home if it can be avoided. That may or may not be possible in your case.

The court is also keen if possible for the outcome to be a “clean break” ie that on decree absolute the final financial order ends all financial ties between the parties (not including child support).

So 3 options:

1.clean break – house is sold & proceeds split between you

2.clean break – H gives you a big enough lump sum that you can manage the mortgage on your own & the house & the mortgage are both put into your sole name

3.Not a clean break – house & mortgage stay in joint names, H gives you maintenance at a high enough level that you can pay the mortgage, and house is sold when youngest child reaches eg 18.

Option 2) On your income, the maximum mortgage you would qualify for is £14,400 x 3 = £43,200, so in order to be able to manage the mortgage so that you could stay in the house, you would need a lump sum from your husband to reduce the mortgage to £43,200 of £180,000 - £43,200 = £136,800. If the house is the only asset, he is not going to be able to raise that sum.

Option 3) The house & the mortgage stay in joint names, and you are allowed to occupy the house to the exclusion of your husband, plus you receive spousal maintenance to cover the mortgage etc. When the youngest reaches eg 18, the house is sold and you then receive eg 60% of the sale proceeds. Although you get to stay in the house, the disadvantages of this option is that you remain dependent on your husband for his maintenance payments, If he defaults, you have to go back to court to enforce the order. Also, although you get to stay in the house for now, it is merely putting off the disruption that will happen anyway, when the house is sold later.

Option 1) The equity in the house is £920,000 (£1.1 million less mortgage of £180,000). Given that your income is significantly lower than your husband's ,and you are to provide a home for the 3 kids, you would be justified in seeking a greater than 50% share eg 60% of the net sale proceeds. 60% x £920,000 = £552,000. I didn't ask you what part of the UK you live in – if £552,000 is not enough for you to buy a mortgage-free property big enough for you & the 3 kids, then you would be justified in asking for more than 60% - say, 65%, but it would be rare for the court to order more than 65% to one party.

So – it seems to me that the best option would be that the house is sold now – and you negotiate - or ask the court to order – what share each of you should receive from the net sale proceeds.

You can negotiate either between yourselves or via solicitors' correspondence or via mediation. The family court anyway now requires the parties to have attempted mediation before it will consider an application to court. Here's where to find a family mediation service near you:

The power of the court to make financial orders in matrimonial cases does not come into play until a divorce petition has been filed at court, so don't delay in getting your divorce petition into court.

If you and your husband can reach agreement, that agreement can be made legally-binding by having a solicitor draw up a draft consent order which you both sign which is sent to court for the court to approve without the need for a court hearing.

If you can't reach agreement, then you can go through the full court process which ends with a contested hearing with the court making a final order.

I think you would benefit from some face-to-face legal advice from a specialist family law solicitor. Here's where to find one:

I hope this helps and I wish you the best of luck.

Thanks and best wishes...

UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience: Very experienced specialist family law solicitor, qualifed in 1994
UKfamsol and other Family Law Specialists are ready to help you
Expert:  UKfamsol replied 1 year ago.
Hello again.

I see you have looked at my answer but not accepted it.

Is there anything you'd like me to clarify? If so, please let me know, and I will do my very best.

Otherwise, I'd be grateful if you would now kindly accept and rate my answer so that I can be paid for my time - thanks so much!
Expert:  UKfamsol replied 1 year ago.

Hello again

I have tried my best to be as comprehensive as I possibly could in my answer to your question - so I am worried that you have still not accepted it.

Please can you now click on accept so that I can be credited for my time - this is the only way that I can be paid for the effort I put into my detailed answer to you.

- thanks so much for your cooperation.

Expert:  Nicola-mod replied 1 year ago.
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Thank you,
Customer: replied 1 year ago.

Sorry I have only just realised I needed to rate this. Your answer had been really helpful and I will definately reccommend you to others. Thank you very much for your help.


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