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Ask Clare Your Own Question
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34106
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My question is about divorce / IVA. I am currently separated

Customer Question

My question is about divorce / IVA. I am currently separated (4 years), my husband has an IVA, we have a joint mortgage. My husband lives in our home, I am in rented accommodation, up until 12 months ago I was contributing to the joint mortgage but stopped when I found out my husband had fallen behind with mortgage payments even though he assured me it was being kept up to date... huge fall out/arguments. I believe that one of the conditions of his IVA is that the house is effectively on hold, ie no remortgage or selling. I understand that with regards XXXXX XXXXX I need to wait until the IVA has expired and then I can divorce and we can sell the house ?? However, he is having financial problems and I am now looking at the possibility of having to move back in with him and contribute to the mortgage ! There is approximately 15 months until IVA has ended... I need to know that once this has expired we can sell the house and we can go are separate ways ??
Submitted: 3 years ago.
Category: Law
Expert:  Clare replied 3 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 much is the house worth and how much is outstanding on the mortgage?
What other assets and debts are there and what income do you each have?
How long did you live together and how long have you been married and are there any children involved?
Clare
Customer: replied 3 years ago.

Hi Clare,


House worth approximately £160K there is £111K outstanding.


I have about £10K debt my husbands debt is via IVA at £434 monthly payments (15 months of IVA payments to go).


My income is £24K unsure about my husbands but guess it is between £35 - £40K


We have been married for 23 years, the last 4 years living apart.


We have two daughters aged 22 and 18, my eldest has already left home, living with her partner, my youngest is currently at university.

Expert:  Clare replied 3 years ago.
Hi
Can I assume that you do not wish to return to the property?
Clare
Customer: replied 3 years ago.

Hi Clare,


We have lived apart with very little contact for the past 4 years, so if I could avoid returning I would, but feel that if it is better in the long run to return, divorce at the earliest opportunity and sell up, I am reluctantly prepared to do that.


 

Expert:  Clare replied 3 years ago.
Hi
When will the fifth anniversary of your separation be?
Clare
Customer: replied 3 years ago.

February 2015

Expert:  Clare replied 3 years ago.
Hi
Since the IVA is not yours you are not bound by it - and if you wish to start divorce proceedings immediately and apply for the immediate sale of the property then there is nothing to prevent you from doing so.
In addition failure to keep up the mortgage payments invalidate the IVA in any event.
How you move forward is up to you - but if he cannot maintain the mortgage payments then the property will have to be sold - you do not have to either pay towards them nor move back in
Please ask if you need further details
Clare
Customer: replied 3 years ago.

Ok, the house is in joint names and as such the IVA does not involve this joint asset, because of this I had to sign a document from Grant Thornton which is lodged with Land Registry to hold any movement on the property for the duration of the IVA.


 


If the house was solely owned by him, then it would have been sold to pay off his debts and I would have gladly started divorce proceedings.


I thought that until this IVA had expired I could not move forward with either selling the house or divorce ??


 


 

Expert:  Clare replied 3 years ago.
Hi
Do you have a copy of what you signed
Clare
Customer: replied 3 years ago.

Hi,


Sorry I do not have a copy. I would assume Grant Thornton have a copy of this, if I were to obtain a copy what then ?

Expert:  Clare replied 3 years ago.
Hi
It was more a matter of checking the wording
You can start divorce proceedings based on your ex's Unreasonable Behaviour whenever you wish or you can wait another year and use the five year separation ground - the choice is yours
Within the divorce proceedings you can ask the court to order the sale of the house - nothing that you have signed can prevent that
Clare
Customer: replied 3 years ago.

Thank you, I will certainly ask for a copy of what I had signed. As you can imagine emotions were very fragile just after leaving him, and he presented me with this document / IVA bombshell only a couple of months after I left. I should have taken a copy.... but didn't.


One last query, if I start divorce proceedings before his IVA has ended, and I ask the court to order the sale of the house, am I correct in thinking that his creditors will then be entitled to his share of the profits if any to pay off the remainder of his debt under the IVA ?

Expert:  Clare replied 3 years ago.
Hi
Yes it is likely that his share will go towards his debts unless he reaches an alternative arrangement.
Clare
Clare and 2 other Law Specialists are ready to help you
Customer: replied 3 years ago.


Thank you Clare, I am a little more clearer in mind now as to what I need to do. Thanks again for your help.


 


Julie

Expert:  Clare replied 3 years ago.
Hi
You are most welcome - good luck
Clare