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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34283
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My divorce was granted 2 years ago and I was granted a £75K

Resolved Question:

My divorce was granted 2 years ago and I was granted a £75K lean on my ex-husbands flat because he took out money against the mortgage on my flat which he now wishes to contest. My question is does he have any legal grounds to have this lean reviewed and is there anything I can do about it? I have forced him to sell the property to obtain the money owed and to complicate matters, we have 4 dependents between us, 2 of which reside with him (aged 14 and 17yrs) and 2 with me (13 and 19 yrs).
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 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.
Could you explain a little more about the financial order that was actually made?
Clare
Customer: replied 2 years ago.

Hi Clare,

I had a charge granted on his property in the sum of £74107.05 in addition to further interest and land registry fee of £80 granted on my ex husband's flat. This was granted because he took money from the mortgage on my flat under false pretences, lied where it was spent during the marriage and since and wouldn't provide evidence where it had been spent during divorce proceedings which the Judge thought was unfair and took into consideration during our financial settlement. Is there anything else you need to know?

Natasia

Customer: replied 2 years ago.

On my husband's flat registration (which I have a copy of) the charge has been noted as a restriction should he wish to sell the property so I can benefit form the final charging order granted.

Expert:  Clare replied 2 years ago.
Hi
For clarity - this was a decision made by the Court after a fought hearing two years ago which he did not appeal at the time?
Clare
Customer: replied 2 years ago.

Yes;but he claims he was suffering from anxiety and depression for which he has been medicated on and off for the last few years and I don't know if this fact permits him to have matters reviewed or not now or at a later time?

Expert:  Clare replied 2 years ago.
Hi
Did he have legal representation and can he produce medical evidence that his mental health was such that he was not capable of working or making decisions?
Clare
Customer: replied 2 years ago.

He saw his GP for antidepressants, but I am not aware of any other medical evidence for his mental health. He was able to work full time shortly after the divorce

and was a litigant in person like myself although he stated he accessed legal advice between hearings.

Expert:  Clare replied 2 years ago.
Hi
Then his chances of reopening the case are limited in the extreme
To be successful he would need to show that he has a serious Mental health issue - depression and anxiety is not sufficient
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 2 years ago.

are there any circumstances where he could get matters reviewed? is there anyway he can review the financial settlement reached 2 years ago regarding asset distribution (I.e. Ownership of flats?) I ask because he keeps threatening to have matters reviewed constantly and the uncertainty is wearing.

Expert:  Clare replied 2 years ago.
Hi
The only basis on which he can have the matter reopened is if he can prove that you misled the court as to the extent of your assets; or that he was suffering from a Mental illness that incapacitated him - which would need to be proved by a medical report - and would have to have been so bad that he could not work either - which is clearly not the case.
Ignore what he says - or tell him he is welcome to try!
Clare
Customer: replied 2 years ago.

so I don't have to worry about a financial review of the flats even if he claims a shortage of space for him to live with the 2 children in his care? What are the chances I will get the charge paid at some point? Can I force him to sell? is there a time limit for that and what happens if he chooses to move out and rent out the flat? Do I have any recourse open to me?

Expert:  Clare replied 2 years ago.
Hi
What does the Court Order say about when payment should be made?
Clare
Customer: replied 2 years ago.

it doesn't say. It's noted only as a restriction on the paperwork should he wish to sell

it or loan against it.

Expert:  Clare replied 2 years ago.
Hi
Are you looking at the Order from the Court - the one that sets out all the financial arrangements
Clare
Customer: replied 2 years ago.

I haven't found county court helpful. It costs to request a hearing. Judges are wishy washy and when orders are granted, he ignores them, so I fail to see the point. Would anything be achieved apart from costing me in fees?

Expert:  Clare replied 2 years ago.
Hi
No I need to know exactly what your court order says about the charge on his property
Clare
Customer: replied 2 years ago.

The wording is as follows: The charge shall continue as modified on 20th Feb. 2014. The interests of the judgement debtor Martyn John O'Brien in the asset described in the schedule below stand charged with the payment of the sum of £74107.05 the amount now owing under the judgement or order given on 7th Jan. 2013 by Basingstoke County Court in claim no. 3BK30406 together with any further interest becoming due and land registry fees of £80. The costs are added to the judgement debt.

Expert:  Clare replied 2 years ago.
Hi
Is that from the Matrimonial Order?
Clare
Customer: replied 2 years ago.

As far as I can work out, it's all part of the divorce settlement. The decree nisi was received after 11th April 2013 stating simply we were divorced. Prior to that on 4th Feb. 2013, there was a general form of order ancillary relief which stated the ex husband was to pay the ex wife a lump sum of £66,000 by 4pm on 8th April 2013 in addition to maintenance payments of £273 pcm from 1st Feb. 2013 (which didn't happen) so I took matters back to Court to obtain a charge on his property for the sum and interest payments up to the date the charge was agreed. I'm still trying to see what I can do about maintenance payments as I have been told I can take matters to the magistrate and he may be criminally convicted, but with 2 of my children in his care am concerned about the repercussions of all this. Please advise.

Expert:  Clare replied 2 years ago.
Hi
Can you tell me a little more about the value of the assets and debts?
Clare
Customer: replied 2 years ago.

I have a 3 bed flat last valued at £260k. He has a 1 bed fat which he valued at £150k. we both similar debts in the region of £80k. I have no other assets and he stated the same when we divorced.

Customer: replied 2 years ago.

when we divorced, I had all 4 children living with me. Since then, 2 have chosen to live with him in London and 2 remain in my care. I don't know if this affects matters now 2 years on?

Expert:  Clare replied 2 years ago.
Hi
What mortgages are there on the property?
Clare
Customer: replied 2 years ago.

there is £190k mortgage on my flat and £60k on his.

Expert:  Clare replied 2 years ago.
Hi
What income do you each have?
Clare
Customer: replied 2 years ago.

I am currently receiving £1800pcm rent for my flat which is my only income as I'm not currently employed.He earns £22k plus his other business ventures which he doesn't disclose to me. Is this important?

Expert:  Clare replied 2 years ago.
Hi
It is relevant to the maintenance issue which you asked about.
So far as the capital is concerned you will not be able to force a sale of his property until the youngest of your children living with him is 18
At that point you will be able to apply for an Order for sale - either to enforce the original Order or by way of an application to enforce the Charging Order
With regard to the maintenance you can apply to enforce the order although doing so via the Magistrates court is the least effective option.
However you need to be aware that of this is children's maintenance then he can apply to the CMS (new CSA)
Clare
Customer: replied 2 years ago.

so to be clear, I'm safe regarding his threat to have the financial settlement reviewed as there are no valid grounds and if I want maintenance paid, arrears may be owed? He has already tried getting maintenance from me through CSA, but they determined that no maintenance was due. Can CSA over ride a Court order?

Customer: replied 2 years ago.

please clarify so I can rate your answer by return

Expert:  Clare replied 2 years ago.
Hi
My apologies for the delay.
You are correct you are safe from the threat.
You can certainly apply to enforce the maintenance Order - but yes the CSA can indeed override the court order
Clare
Clare and 3 other Law Specialists are ready to help you
Customer: replied 2 years ago.

Thank-you for the advice