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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33318
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Hi, I am due to conclude my FDR with my wife which has been

Customer Question

Hi,
I am due to conclude my FDR with my wife which has been a long drawn process and I am at the final stages.
I have agreed to settle on a amount to go into the marital mortgage account but my wife wants me to put a large amount into her solicitors account so that she can pay her legal fees and I have asked if this is the correct process which her solicitors seems reluctant to explain. Is this normal protocal?
As if I recall the matter in question was that I took money out of the martial home for a business venture and the Judge explained that if money was taken from the home it should be put back.
I don't want to make it awkward to my ex wife but just need some clarity please.
Regards
Rick
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare and I will do my best to help you but I need some further information first.
What are the terms of the agreement that has been reached?
Clare
Customer: replied 2 years ago.

Hi Clare,


Is this information viewed online or is it kept private please?


Regards


Rick

Expert:  Clare replied 2 years ago.
Hi
You get the chance to lock it at the end - but only give me the highlights anyway!
Clare
Customer: replied 2 years ago.


Hi Clare,


I have sent the consent application , there are some amendments to be made but that should you give an indication, I look forward to your feedback?


 


 


 


 


IN THIS ORDER, where the context so admits, “the former family home” shall mean 50 Parkside Terrace, Cullingworth, Bradford, West Yorkshire, the title to which is registered under title no. WYK446855.


 


UPON the Husband and the Wife agreeing that the terms of this order are accepted in full and final satisfaction of all claims for income, capital and pension sharing orders which either may be entitled to bring against the other or the other’s estate in any jurisdiction arising in relation to their marriage.


 


AND UPON the Wife undertaking to the court and agreeing with the Husband to:



  1. use her best endeavours to procure the release of the Husband from any liability under the mortgage secured upon the former family home in favour of HSBC Bank plc and, in any event, to indemnify the Husband against all such liability;


 



  1. sell the former family home if, by the time the children of the marriage, Rohan Thaper (d.o.b. 2.2.05) & Eva Thaper (d.o.b. 26.7.07), have finished education, up to and including first degree level, she has been unable to procure the Husband’s release from the mortgage over the former family home.


 


AND UPON the Husband undertaking to the court and agreeing with the Wife to:



  1. 1. pay into:

    1. the HSBC Bank plc mortgage account number £27,132.35; and

    2. into the HSBC Bank plc mortgage account number £37,367.65;



in each case within 28 days from the date of this order, if such payment has not already been made by the time the application for this order approved;


 



  1. 2. cooperate in whatever way is necessary to ensure that, following the payment referred to above, as favourable a mortgage deal as possible is then negotiated in relation to the mortgage in respect of the former family home;


 



  1. 3. continue to pay the whole of the mortgage instalment in relation to the former family home until the payment referred to at 1 above has been made;


 



  1. 4. arrange and pay for weekly piano lessons for the children of the marriage, Rohan Thaper (d.o.b. 2.2.05) & Eva Thaper (d.o.b. 26.7.07), up to an including each child respectively attaining 18 years of age.


 


 


AND UPONthe Husband and the Wife agreeing that the contents of the former family home shall become the absolute property of the Wife, with the exception of the piano, which is to be released to the Husband within 14 days from the date of this order, by prior arrangement between the Wife and the Husband.


 


 


BY CONSENT IT IS ORDERED THAT:


1. The parties’ beneficial interests in the former family home are hereby varied, so that in future they are 100% to the Wife and 0% to the Husband, and they shall continue to hold the former family home on a trust of land for themselves and in future on the following terms and conditions:


1.1 The Wife shall be entitled to occupy the former family home rent-free to the exclusion of the Husband;


1.2 The Wife shall, with effect from the date of the payment of the sum of £64,500 into the mortgage account referred to above, be solely responsible for all payments of capital and interest on the mortgage secured on the former family home in favour of HSBC Bank plc;


1.3 The Wife shall be responsible for all maintenance and repairs to the former family home;


1.4 The cost of insuring the former family home and of any structural repairs (defined as repairs to load-bearing walls into the roof) shall be the sole responsibility of the Wife.


 


2. The Husband shall transfer to the Wife within 28 days of the mortgage lender of the former family home, HSBC, confirming its consent to that transfer, all his legal estate and beneficial interest in the former family home, subject to mortgage.


 


3. If the Husband fails to execute a form TR1 to give effect to paragraph 2 above within 14 days of his being provided with it by the law firm acting on behalf of the Wife, a District Judge of this court shall be empowered to execute the TR1 on the Husband’s behalf.


 


4. If the Wife has not procured the Husband’s release from the mortgage over the former family home in favour of HSBC Bank Plc by the time the children of the marriage, Rohan Thaper (d.o.b. 2.2.05) & Eva Thaper (d.o.b. 26.7.07) have finished education, up to and including first degree level, the former family home shall be sold on the open market, and the following consequential provisions shall apply.


4.1 The former family home shall be sold for such price as may be agreed between the parties, or, in default of such agreement, as determined by the court;


4.2 The Wife shall have the conduct of the sale;


4.3 The Wife’s solicitors shall have the conduct of the conveyancing work relating to the sale;


4.4 The former family home shall be offered for sale by such estate agents as may be nominated by the Wife;


4.5 The proceeds of sale of the former family home shall be applied as follows:


4.5.1 To discharge any mortgage secured over the property;


4.5.2 In payment of the conveyancing costs and disbursements in connection with the sale of the law firm that acts in it;


4.5.3 In payment of the charges of the estate agents who act in the sale;


4.5.4 In payment of the whole of the balance, to the Wife.


 


5. The Husband shall make periodical payments to the Wife for the benefit of the children of the marriage, Rohan Thaper (d.o.b. 2.2.05) & Eva Thaper (d.o.b. 26.7.07), at the rate of £100 per month per child, such payments to be made monthly in advance from the date of this order and to end on the children respectively reaching the age of 17 years or ceasing full-time education, whichever is the later.


 


7. The Husband’s claims for financial provision, pension sharing and property adjustment orders do stand dismissed and the Husband shall not be entitled to make any further application in relation to the marriage under the Matrimonial Causes Act 1973, section 23(1) (a) or (b).


7. Except as provided for above and upon full compliance by the Husband with his undertakings, the Wife’s claims for financial provision, pension sharing and property adjustment orders do stand dismissed and the Wife shall not be entitled to make any further application in relation to the marriage under the Matrimonial Causes Act 1973, section 23(1) (a) or (b).


 


8. The Husband shall not be entitled on the death of the Wife to apply for an order for provision out of the Wife’s estate.



9. Following full compliance by the Husband with his undertakings, the Wife shall not be entitled on the death of the Husbandto apply for an order for provision out of the Husband’s estate.


 


 


10. There shall be no order as to the costs of this application or as to the negotiations ancillary to it, except that the costs of the Wife shall be assessed in accordance with the Civil Procedure Rules 1998, rule 47.17.


 


 


11. There shall be liberty to apply as to the implementation and timing of the terms of this order.


 


12. And it is certified that, for the purposes of the Community Legal Services (Financial) Regulations 2000 and the Access to Justice Act 1999, the former family home has been preserved/recovered for the Wife for use as a home for herself and the children of the marriage.


 


 


 

Expert:  Clare replied 2 years ago.
Hi
That order is exceptionally clear - so pay the money into the accounts as ordered - and NOT to her solicitor.
Clearly paying it elsewhere would prejudice the possibility of her getting a remortgage - and you were NOT ordered to ay coast
Please ask if you need further details
Clare
Customer: replied 2 years ago.


Hi Clare,


From my point of view I want to get this situation resolved and out of the way but I believe the reason why my ex wants the money to go into her solicitors account is to pay her legal fees as she will incur 8% interest per month, it was not put in the order as it is not finalised yet


There was a rush from my part to put the money into the mortgage account asap as I need to pay for the loan in which has helped me to settle this matter.


The settlement was £64,500 and she wants £10,000 to go into her solicitors account, I am trusting this in good faith and on the face of it I would agree to doing this as long as it does not affect me and from your response about paying it elsewhere would it and why please?


Regards


Rick

Expert:  Clare replied 2 years ago.
Hi
Have the solicitors offered to revise the order?
Clare
Customer: replied 2 years ago.


Hi,


Yes they will be doing and are waiting for me.


Regards


Rick

Expert:  Clare replied 2 years ago.
Hi
Before agreeing ask them to confirm in writing that it will not prejudice her ability to remortgage the property
If the Order is changed then this is the only potential effect that it could have for you - that it reduces the chance of a re-mortgage
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 2 years ago.


Hi,


Correct me him if i'm wrong but she can't do that anyway if i'm still named on the property?


Regards


Rick

Expert:  Clare replied 2 years ago.
Hi
The whole point of the Order is for her to remortgage the property to release you from the mortgage.
You need to be assured that the fact that she will have to borrow an extra £10,000 will not make it impossible
Clare

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