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Harris
Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2848
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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Clean break agreement and joint property

Resolved Question:

Clean break agreement and joint property
Submitted: 1 year ago.
Category: Family Law
Expert:  Harris replied 1 year ago.
Hi, thank you for your question. Please would you elaborate more on the issue and what information you seek?
Customer: replied 1 year ago.
Hi HarrisMy wife and I have been divorced for a few years.
We have 3 properties together 1 house and 2 flats
I want to settle and get a clean break agreement
The mortgage company will do an equity transfer on the flats but not the house
I think my ex wife will be happy to settle for £20k - but I'm concerned that she will still be on the house mortgage
My question is will a clean break agreement be possible in these circumstances? or will i need to sell the housePete
Expert:  Harris replied 1 year ago.
Thank you for the further information. Just a bit more information required to fully assist:-How long have you been married?-How old are you both?-Are there any children, if so how old and their arrangements?-How much are the assets each worth, and how much mortgage outstanding on each?-What other assets do you both have, including pensions?-What are your respective incomes?-Have either of you remarried?
Customer: replied 1 year ago.
We had been married for 12 years
I am 43 and she is 40
Both kids live with Mum 17 and 20
Flats are worth £82k each mortgages about £72k
House is worth £230k mortgage is £208k
I have about £20k in pension, no other assets - julie has none
I earn £27k julie earns 18k i think
I have remarried - julie is single
Expert:  Harris replied 1 year ago.
Thank you - are all the properties in joint names between you two?
Customer: replied 1 year ago.
Expert:  Harris replied 1 year ago.
Thank you. Firstly, as you have remarried you cannot seek financial relief from your wife but you will be able to deal with the joint assets and pursue a clean break. As she has not remarried, she can seek financial relief from you - in relation to potential spousal maintenance (if she cannot meet her reasonable needs) or pension sharing (although the pension is fairly small and she is 40 years old - therefore at least 20 years before retiring).In relation to the properties, the court's starting point will be a 50-50 split of the equity - therefore £21,000 each. If she is happy to settle for £20,000, then a court may be convinced it is fair given both your modest salaries, young ages and no dependant children. In relation to a transfer of all the properties and mortgages to you, no matter what a court orders, it is for the mortgage companies to agree a transfer to your sole name - you should make enquiries with the companies who will undertake affordability checks to see if you can take them on solely. If they feel you cannot, then a deed of trust can be drawn up to reflect any agreement you have reached (for example for you to have 100% benefit of equity and for her to have 0%). These will be legally enforceable.I hope this assists you. If you found this information helpful please provide a positive rating using the stars at the top of this page. I will not be credited for answering your question without a positive rating. Thank you
Customer: replied 1 year ago.
in summary, because the house cannot be transferred into my name (as per the mortgage company) I can proceed with a deed of trust and clean break agreement?
I presume she will still be liable for any mortgage arrears in future?
So I think you are saying a deed of trust and clean break agreement will allow us to move forward...
Expert:  Harris replied 1 year ago.
a clean break and deed of trust is the best way forward if the mortgage company will not release her. However, it would be usual for you to undertake to indemnify her if there are any arrears to the mortgage that are claimed from her, or if you default and they pursue her.
Harris and 2 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
Does this indemnity appear in the deed of trust or is there another document that is needed?
Expert:  Harris replied 1 year ago.
Both the consent order (clean break agreement) and the deed of trust should include the indemnity clause.