Thanks for your response.
The property has been valued (£25000 with 90000 equity) but has not been put on the market.
Considering how difficult the divorce has been I wish to avoid a lingering long sale period and settle the equity.
My ex is adamant and it is very likely to go to court. Any estimate of the cost / time for such an Order? and does this situation warrant seeking legal costs?
Would you be interested in taking on this case? And can the 'Sale of property' order be delayed by objections such as not allowing me to borrow against the equity to pay her share of the equity or insisting on transfer of the current portable interest only mortgage to her name?
She did intend to use the Portable Mortgage when she considered taking on the property; it does have favourable (interest only) terms, so I assume she may want to transfer it to buy another property.
I will only be able to raise the additional mortgage to cover her 60% equity, if I could keep the current interest only mortgage.
To be clear Clare; the portable mortgage was taken based entirely on my income and I have covered the mortgage payments. Very briefly, my ex was a mature student before the separation and also studied for a further course after the divorce. The ancillary/financial relief covered all costs for this to be possible. She has not had any contribution towards getting the mortgage.
In the circumstance, should I not have equal (if not more) of a right to keep (or port the mortgage)?
Here is the text of the Order:
"The property shall be sold upon the youngest of the said children reaching the age of 18 years and the following consequential provisions shall apply:
a) upon sale the proceeds of sale shall be applied as follows:
i) redemption of the mortgage with the Woolwich building society
ii) Payment of solicitor's costs and disbursements on sale and payment of the estate agent's charges on sale.
iii) The balance remaining (the Net Equity) shall be divided between the parties as follows: The Petitioner shall receive 60% of the net equity and the Respondent shall receive 40% of the net equity.
b) The Petitioner shall have the conduct of the sale.
c) The property shall be placed on the open market at a price to be agreed between the parties or in the absence of agreement to be determined by the Court.
Does this order mean, I have signed away my mortgage to my ex??!!
The advice at the Bank was either of us could voluntarily take our name off the mortgage and subject to affordability continue or transfer it to another property within a month of a sale.
The implication of Porting the Mortgage is key as we are both in our 50s; just to get a clearer idea of what a court decision may be, here is a brief context.
On divorce, I think there was a “from each according to their ability and to each according to their need” type of agreement with 50% contact arrangements. The maintenance and the child benefit / tax credit amounted to just under 2000 pounds, with an interest only mortgage payment of less than £100. This is more than we ever had as a family and it was to allow my ex to finish a degree course in the hope of a future career. She has done that and now has a reasonably paid job and savings. I have rented a flat near the family home/school and manage but no savings. I believe this would be clear from any financial statement submitted.
We are now at the end of our arrangement which unfortunately never considered future mortgage needs.
I was happy for my ex/guarantor to take on the house and the kids would have had the family home to come to and I would be able to buy a flat with the 40% equity as deposit. My ex has decided against this.
I have offered a variation on the current order until the kids leave university with adjustment to the equity ratio to 50/50 or 40/60. This is not acceptable to my ex.
My offer to accept the asking price (save any resolution to porting the current mortgage) has also not been accepted with the response that it will be sold but not to you!
In terms of mortgage needs; I have no savings for a deposit but a reasonable salary and my ex has sufficient savings and a lower salary.
In the circumstance, what do you expect the court judgement to be? Is it all or nothing? Could they order the Portable Mortgage to be split and shard? And if it came to a dispute, what are the likely cost estimates?
If by Sept, the date of the court order, the property is not put on the market; do I have an option of a court order to take charge of the conduct of the sale? And in this situation, what happens with porting the mortgage?
Similarly, if the the property is put on the market but my ex refuses to accept my offer of the asking price; do I have an option to take charge of the sale and porting the mortgage?
I greatly appreciate your reply Clare; and particularly grateful for a reply on a Sunday.
Just trying to decide what to the next? and it seems I either just wait till Sept or Dec) or try to get a response from my ex. now. I had drafted this note to send to her:
" ... As you are aware we are legally obliged to carry out the Court Order and the deadlines it sets can not be ignored.
To be clear, you have had opportunity to buy the property and have decided that it is not feasible.
I understand your wishes are to put the property on the market for sale, but not to me! In such circumstance, I will have the option to seek a Court Order and the costs incurred to force a sale. I have been clear that I have no wish to move into the property and if I am forced to seek a Court Order it would be to keep something for the children; the last opportunity I am able to do this.
As an alternative, I have offered to support loans to keep the property until Faranak goes to university and to make this possible the equity needs to change to a 50/50 split but you have rejected the idea. I urge you to reconsider the arrangement for Faranak.
If you remain adamant and wish to put the property on the market, then in accordance with point 2C of the Court Order, we need to agree a price or in the absence of a reply and an agreement it needs to be determined by the Court. We are legally obliged to do this.
I look forward to your reply but should a reply not be forthcoming, I can only assume that you wish matters to be resolved at Court through lawyers."
I appreciate the question is not just 'law' but overall would you advise that I should just wait till Sept-Dec or send a note to get any response.
I Have not had nor do I think likely to have a response from my ex. In the Order, the deadline for the sale of the property is in Sept. I would like to see it all finalised as soon as possible. It's a rhetorical question but it seems I have to wait until Sept before I can think of any legal action to force a resolution. Or can I expect the start of the sale process now for it to be finalised by Sept?
Also, I had a note to say I should leave a rating/feedback. Does this still allow for contacting you?