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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34282
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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I split from my Ex in 2005 and we divorced in October 2006.

Resolved Question:

I split from my Ex in 2005 and we divorced in October 2006. The Divorce was at Cardiff County Court. A Court implemented 'consent order' is in place.
After spending a lot about £25k I was advised to give up equity in the home as I was told by the Barrister I could start making my wealth again. I was not that wealthy. My then - Fiancée was pushing me to just accept and get divorced.
So, I signed a TR1 and gave up my share of equity in what was my matrimonial home. Abbey National - now Santander - £90,122 interest only, joint. Now valued at £270,000. It was positioned my ex Wife should make good intentions to remove me from the joint mortgage, indemnify me on default or not paying the repayments.
Some almost decade later I find out from my Ex Wife Fiancé tracking me down after he split with her, that I am still on the joint mortgage.
I called Santander and they say no 'change of bar' to my ex Wife has ever been applied for? so much courts direction of best endeavours to remove me from the mortgage.
Secondly, I work in regulated Financial Services, today I am informed by the CMS that I changed from Court implemented 'consent order' maintenance of £500 per month to my 2 children. Now 20 and 18 and finished education.
Plus buried in the legal wording effectively paying my Ex Wife - £100.00 per month (Shock, horror). Unless she marries, dies or cohabiting months or more.
Well her ex Fiancé informs me he moved in in 2005 and moved out in December 2014.
So I have been kept on the mortgage that comes to the end of the current term in 18 months (panic).
I have paid over £58,000 in maintenance, never missed. Struggled to get contact with my children and now they hate me as my Ex Wife has poisoned them against me, even though I pay them money and give them gifts.
I have paid almost £10,000 unnecessarily on the £100.00 monthly maintenance (very wrong) to my Ex Wife. Found out as above this should not have happened. Plus is wrong.
I have tried several times to see if my Ex Wife will let me work with her amicably sake of me trying to see my children, let me come of the mortgage and stop the wrong LIFE payments. Basically she wont work with me and I am worried she will default and I will get bad credit and lose my work in financial services.
So in summary:
* I need to come of the TR1 transferred (9 YEARS AGO) 100% equity to ex Wife joint Santander interest only Mortgage.
£179,878.00 in equity. I have lost out on my share.
* Have the LIFE (sentence) maintenance payments to my Ex Wife stopped (as totally wrong, I never agreed to this! Recover the almost £10,000 I have paid unnecessarily.
Are you able to assist?
Thank you.
Keith
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years ago.

Thank you question.

I will do my best to help you but I need some further information first.
Do you have a copy of the Order?
Clare
Customer: replied 2 years ago.

Clare,

Yes I do.

Petitioner (ex wife) undertakes to use her best endeavours to secure the release of the respondent from his covenants under the charge.

Charge being ex matrimonial home.

And upon the petitioner agreeing to pay all outgoings in respect of the home including the repayments due under the charge from the date of this order and to indemnify the respondent in respect of all actions claims and demands relating thereto.

And upon the respondent decaling that of insolvency ...(basically I am / was solvent).

Order 1. The respondent shall transfer to the petitioner within 28 days of this order or within 7 days of decree absolute whichever is the later, all his legal estate and beneficial interest in the home subject to the charge. ( I did this. I transferred via TR1).

2. From the first day of march 2006 the respondent shall pay or cause to be paid to the petitioner periodical payments at rate of £100 per month payable monthly in advance during their joint lives until the first of the following events shall occur:

(i) The remarriage of the petitioner

(ii) The cohabitation by the petitioner with another man period longer than 12 months

(iii) The death of the petitioner

(iv) Maintenance.... sorted. As of today ended with CMS. (Was court order implemented maintenance, transferred up to CMS 2014.

Expert:  Clare replied 2 years ago.

Who transferred it to CMS and when did it end under the terms of the Court Order?
Clare
Customer: replied 2 years ago.

Clare,

I have self studied the legal option to transfer to CMS. The purpose of me doing this was to align to the CMS cut off ages.

CMS took over and superseded the court maintenance order from 29th September 2014. On 29/01/15 CMS informed me I no longer need to make maintenance payments.

The reason being my son (20) started university in September 2014 and my daughter (18) has ended education from June 2014. I was informed by CMS that I have overpaid this month on maintenance and claim direct with my ex Wife (not much chance of that).

I was made redundant from my investment role in June 2014 and started my current investment role from 01/10/14, as a matter of goodwill to try and still see my children I still made maintenance (advances) payments to my Ex Wife.

Expert:  Clare replied 2 years ago.

When did child maintenance end under the terms of the court order - it is relevant
Clare
Customer: replied 2 years ago.

Clare,

Child maintenance ended on 29th September 2014 when CMS had superseded the original Cardiff County Court implemented consent order.

Kind regards,

Keith

Customer: replied 2 years ago.

Clare,



Child maintenance ended on 29th September 2014 when CMS had superseded the original Cardiff County Court implemented consent order.



Kind regards,



Keith

Expert:  Clare replied 2 years ago.

I am fully aware of that.
However since you wish to apply to vary the Order it is essential that I know what the arguments against you will be - and one of these would be when the original child maintenance WOULD have ended had the cMS not been involved
Clare
Customer: replied 2 years ago.

The child maintenance should not be an issue as this is allowed.

My main questions are re the mortgage and monthly life payment, based on what I had positioned.

Sorry I am not sure what you are asking?

Could you please clarify?

Thank you.

Keith Jobson

Expert:  Clare replied 2 years ago.
Keith
You wish to apply to the Court to force your release from the mortgage.
You have already contacted the Mortgage Company who have confirmed that your ex has not in fact even attempted to obtain your release from the mortgage.
You are therefore entitled to write to her a formal letter asking of the attempts that she has made to obtain your release - and if she ignores this you can make an application on a form D11
http://www.familylaw.co.uk/system/uploads/attachments/0002/0835/D11.pdf
seeking an immediate sale so that you can now be released from the mortgage since the property is no longer required children
With regard to the ongoing maintenance you can apply to have this discharged - and point out that you were paying whilst she was cohabiting in the past and on that basis should not be asked to pay a further lump sum in order to discharge the liability.
The form that you need application is here
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-a-eng.pdf
My concern is that if the Court Order provided maintenance of the children to extend to cover the period whilst they are at University the court may take that into account when considering the issue of the spouse maintenance and indeed that you ex will use the hearing to argue that the Order still stands in respect of child maintenance payable after the CMS assessment has ceased.
Please ask if you need further details
Clare
Customer: replied 2 years ago.

Thank you guidance and links.

On the point of the cohabiting I am informed is over 9 years. That means circa £10,000 was overpaid. Would I be awarded with a refund on sale of the ex matrimonial home?

On the point of requesting a sale, as my ex Wife has probably been playing the game by using estate agents and on over 3 years, but as shown on ZOOPLA always positioning over the benchmark on other similar property being sold, would the Court implement a court controlled sale using Estate Agents or via a Property Auction? Or maybe starting with an Estate Agent at a more reasonable sale price and if no offers then move to a Property Auction?

As much as I want off the mortgage as I gave up the equity by transfer of TR1 in 2006, I don't want my ex Wife to have to sell at any price benefit of my children, so she can get a reasonably good sale price.

I have positioned that when I attempted to offer some options, she should consider reducing by £10k, she refuses to do this.

Thank you.

Keith

Expert:  Clare replied 2 years ago.

I am afraid it is unlikely (as in it will not happen) that you will get a "refund"
It was up to you to check the situation I am afraid.
However the overpayment should ensure that you will not have to pay your ex a lump sum to "buy out" the future maintenance payments
If an Order is made it can specify an estate agent and a price range sale
Clare
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