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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33946
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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HelloI am currently going through a separation which will

Customer Question

Hello
I am currently going through a separation which will lead to divorce but i havent filed for divorce yet.
My wife and I have 2 properties in our names, one which i live in as she moved in with her new partner, and a rented property.
I want to take full ownership of the rented property. It has very little equity as it has been valued at £105,000 and the interest only mortgage is £101,500 outstanding. My question is this, can I pay her some money now to have her name taken off the property and what would be involved in this to make it legally binding and take it out of the marriage split? I was thinking of offering her around £7500 and i would like this sorted quickly.Would the bank allow this to happen as neither of us are in full time employment but the rent on the property is £450 per month with the mortgage payment only being £190 per month.
The other property is our family home where i live with my 2 girls. She wants to sell both the family home and rented property and split the difference but i want to keep both properties. I have no mortgage capacity at the moment but im starting my own business so i need time. Wouldnt it be likely that im given time to gain a mortgage capacity as the children live with me 60% of the time in our family home? Perhaps have a consent order drawn up to give me say 24 months to sort this out?
In a nutshell I want the rented property sorted asap and i need upto 24 months to sort the family home to gain a mortgage capacity. She has threatened court action but with only £70000 equity it would be a waste of money surely.
thanks
Derrick
Submitted: 2 years ago.
Category: Family Law
Expert:  Nicola-mod replied 2 years ago.
Hello,
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Thank you!
Nicola
Expert:  Nicola-mod replied 2 years ago.
Hello,
I apologise as we have not yet been able to find a Professional to assist you. Do you wish for me to continue to search for someone to assist you or would you like for us to close your question at this time?
Thank you for your patience,
Nicola
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.
How long have you lived together and how old are the children.
How much is the Matrimonial Home worth and how much is outstanding on the mortgage?
What other assets are there and what income do you each have?
Clare
Customer: replied 2 years ago.

hi clare,

we have lived together for around 20 years, about 9 years in the present family home. The children are 10 and 12, both girls. The matrimonial home is worth about £140,000 and the outstanding mortgage is around £70,000. There are very little other assets and neither of us are working at this present time. I am at present claiming tax credit and job seekers allowance.

kind regards

Derrick

Expert:  Clare replied 2 years ago.
Hi
What time do the children spend with her?
Clare
Customer: replied 2 years ago.

Hi

They spend about 60% with me and 40% with her

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

Hi

Her partner owns that property. Three bedroom properties start at around £120000.

thanks

Derrick

Expert:  Clare replied 2 years ago.
Hi
Where would the £7,500 come from?
What other assets are there?
Clare
Customer: replied 2 years ago.
Hi Clare,
We have a mortgage reserve account. This means we have access to some of the equity in the house. Up to around £46,000 I believe.
Thanks
Derrick
Expert:  Clare replied 2 years ago.
Hi
Could you access all of that if need be and your ex co-operated?
Clare
Customer: replied 2 years ago.
Hi Clare
Yes I've got access to all of the £46,000. It's actually in one of my accounts to stop her spending it.
Thanks
Derrick
Expert:  Clare replied 2 years ago.
Hi
For clarity - is this amount included in the mortgage debt that you have already told me about?
Clare
Customer: replied 2 years ago.

Hi

Just to clarify. Our mortgage outstanding is £70,000. We have immediate access to an extra £46,000 worth of borrowng against the property in the mortgage reserve account as part of the mortgage deal. So if we were to use all of this extra the total mortgage would be £116,000.

i hope this helps

thanks Derrick

Expert:  Clare replied 2 years ago.
Hi
Yes that is helpful
In fact there is no reason why the finances should not be sorted immediately - and you have little to fear from the court
So the total capital assets are in the region of £75,000 at most
A 50/50 division would be £37,500 each.
In fact there are sufficient available funds to allow your ex to receive her share of the equity - although she will have to remain on the mortgages
Given the fact that the children spend slightly more time with you it is very likely that the court would see this as reasonable with your having to achieve her release from the mortgages as soon as possible
The only doubtful issue is the rental property - but the figures above are generous to her and if she goes to court to force a sale she might in fact receive up to £5,000 less.
This is more realistic than any agreement which deals only with the rental property.
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 2 years ago.

H Clare,

Many thanks for your reply,

I do agree with you that i can settle the finances immediately but a solicitor i spoke with recently advised against it. I'm currently on the verge of starting my own business so things will be very tight for a while I'd imagine, so I don't have a mortgage capacity, but to be fair neither does she as she is unemployed.

The reason the solicitor said for not settling now was that when i come to try to remove her from the mortgage, say in 12 / 24 months time, she could ask for more money, as in , "give me £10,000 and i will remove my name". This is an obvious concern. If there is a legally binding way that i could protect myself from this happening then that would be useful. The solicitor advised that i make a best endeavours clause into the consent order which says i will do my best to release her within 24 months of the mortgage and if i cant then we will sell the house.

Please advise as I'm very keen to get divorced and rid of her, pay her off and keep both properties but give myself the 24 months to get financially sorted. I haven't gone to the mortgage lender yet as i don't want to alarm them but if something was decided wouldn't i need to tell them ?

thanks Derrick

Expert:  Clare replied 2 years ago.
Hi
There is no reason whatsoever to delay the divorce and a Clean Break Financial Order that includes the provision that you will use your best endeavours to release her from the mortgages - or in default will sell the property if you cohabit or when the youngest child turns 18
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33946
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
Clare and other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi Clare,

Many thanks for your help.My situation has evolved a little so i need to ask for some more advice with the above situation. Please advise me if i need to pay again, thankyou

I put together 2 proposals at mediation which i will attach below here -

************************************************

Proposal 1

The financial split is delayed until a time when I have a mortgage capacity or I’m in a position to buy Sarah out at an agreed amount/ percentage. This would be put into the ‘Consent Order’ as a ‘Best endeavours clause’ which would state something like “I will use my best endeavours to release S Braithwaite of all of her liabilities under the mortgage and in any event indemnify her from any liability under that mortgage. Failure after 24/36 months to release her from that mortgage will result in the properties being put up for sale.” Or a trigger event like “ the buyout would need to be completed if a, a new partner moves in after 6 months, or b, lucy reaches the age of 16/18”

This would give us a delayed financial split and allow us to get divorced if we both agree on the Consent Order.

Proposal 2

The financial split takes place as soon as possible by us both agreeing to pay Sarah her agreed share from the Mortgage reserve (loan) account. What I would like to happen is Sarah to agree to let me retain the rental property with zero equity and the family home by paying Sarah around £33,500 (half of the equity in the family home) as soon as possible from the account and her receiving this as the final settlement. This can be legally binding and put into the consent order to the divorce court to allow us to get divorced. I’ve had a chat to my solicitor about this and he says if we both agree then the court should accept it. Then it would include a Best endeavours clause from me “to release S Braithwaite of all of her liabilities under the mortgages and in any event indemnify her from any liability under the mortgages. Failure after 24/36 months to release her from that mortgage will result in the properties being put up for sale.”

I’m aware that this still leaves Sarah’s name on the mortgages until the buyout is complete but bear in mind that it will be legally binding in a consent order put to the court. Also, Sarah has no mortgage capacity so cannot get a new mortgage for a period of time anyway. Also, if like I’ve been advised that the court would not force the sale of the family home and would allow me time to gain a mortgage capacity then Sarah would still have her name on the mortgages regardless. The best endeavours clause would be there as I would ensure that I will do all I can to release Sarah from the mortgages within a set timeframe.

***************************************************************

Unfortunately she is a difficult character and she not only refused both proposals but ended the mediation altogether and now our next step is court for both the financial split and the children. She never tried to negotiate or even tell me what she wanted, no counter proposal, nothing. Our children had a private mediation session and they gave their feelings, the outcome was that my estranged wife stopped their pocket money as she didn't like what they said!

So my question is - When this goes to court how do i best defend my position of staying in the family home with the children (ive been here a year now since she moved in with her new partner) as i get the impression she wants me out and for her to move back in.

Also, how do i convince the court that my children don't want further time with their mum (the split is about 60/40 with the 60 being me) and they really don't but my wife is accusing manipulation tactics and i feel this is why she now wants the family home and to move her new partner in.

Why she doesnt take the financial split offered i dont know, it all seems to be driven by anger rather than common sense. I want to go back to mediation to sort this out but i obviously cant make her and i want the court to know that she hasn't tried to negotiate at all. She is going down the path of 'mental abuse for the last 22 years' which is her reasoning for having an affair apparently, all rubbish i know but do the courts listen to this kind of thing ?

many thanks

Derrick

Expert:  Clare replied 1 year ago.
Hi
I have to say that I would not advise her to accept either of these.
The figure you are offering is simply not enough to be attractive
The reason for the separation is not relevant to the financial issues
Clare
Customer: replied 1 year ago.

Hi Clare

Thank you for your response.

You state that you would not advise her to accept either of these proposals. Can you make me understand why please?

This way would allow for her to get half of the equity in our house immediately with the compensation of me retaining the rental property also with zero equity. The alternative could be that she has to wait until a trigger event for me to sell the family home to release the equity which could be years away. The children wish to remain in the family home with myself (around 60% of the time).

thanks

Derrick

Expert:  Clare replied 1 year ago.
Hi
The Cash offer that you have made is too low.
Since the money is already available she will not have to wait for her share of the equity - but she will have to stay on the mortgage - but only on one
Clare
Customer: replied 1 year ago.

Hi Clare,

My solicitor explained to me that if i could get her to agree this before court then the court would more that likely accept the agreement, however he believes that the court would not get involved in splitting money from a mortgage reserve fund themselves as its not a normal thing to do, instead opt for a delayed settlement.

Do you not agree with this ?

thanks

Derrick

Expert:  Clare replied 1 year ago.
Hi
If you had not already drawn it down then I woudl agree - but you have so that will make the Court fell that there is no reason NOT to use it
However it is a gamble - but clearly one she wishes to take
Clare

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