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ukfamilysolicitor
ukfamilysolicitor, Solicitor
Category: Law
Satisfied Customers: 727
Experience:  Qualified Solicitor Currently specialising in Family. Also experienced in Corporate, Employment, Civil Litigation, Debt Recovery
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I was wondering if you could help me, me and my husband

Customer Question

Hi I was wondering if you could help me, me and my husband have split up and he has moved out of the home we have a mortgage on. I'm currently paying the mortgage on my own fine. I have contacted my mortgage company and asked about taking him off the property but they have confirmed i would have to re-apply for a mortgage on my own which i know i would most likely not be accepted for as i'm self employed and on my own.
My exhusband is happy to come off the property. Is there any solution you could offer, a legal document we could both sign?
Thanks
Submitted: 1 year ago.
Category: Law
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Welcome to Just Answer
Thank you for your question. I am sorry to hear about your current difficulties.
I am going to detail for you the correct process of dealing with divorce an the matrimonial finances. I know that this is a bit more than what you asked for but I feel that you do need this information.
The problem that you have is that even if you both agree what should happen i.e. you get the house - mortgage companies are simply not bound by any agreement that you have between you or any court order that a Judge may make or approve.
You should seek to agree a consent order with your husband and submit it to the court for approval during the course of divorce proceedings confirming the agreement that you have reached. If the Judge approves this and seals it then it is binding on you and your ex therefore even if the mortgage company won't remove his name (and they don't have to because your contract is with them and they will not want to give up their right to be able to pursue him if you don't pay) you have an order to say the property is yours and your ex won't be able to seek to override that in the future and seek to claim from you - even if he is still named on the mortgage.
Another reason why I want to provide you with the full process is because you will not know if the agreement you have reached is fair unless you follow it - your husband could have other assets such as a pension which you are also entitled too.
In relation to the matrimonial finances - The correct process for dealing with the matrimonial finances and division is to go through a process known as full and frank financial disclosure. Yourself and your husband need to exchange full details of all assets ( including pensions) and liabilities before negotiations take place in relation to settlement.
The normal rule for division is 50/50 however the matrimonial causes act sets out factors which could lead to a departure from this rule. A few examples are the likely earning capacity of both of you for the future, health needs, future care of children etc. Everything is included in disclosure.
You should consider making a referral to a specialist mediation service. They can assist in relation to the process of disclosure and also in relation to negotiations about division. One such mediation service is the National Family Mediation service. www.nfm.org.uk
If agreement cannot be reached then an application would need to be made to the court. You can not make an application to the court until you have at least attempted mediation first.
It is very important that no division of any assets takes place until a court order is obtained.
If division is agreed without the need to apply to court then you should submit a consent order for Judicial approval prior to division and obtaining decree absolute. The court fee is £50. Not doing so could leave you open for a future claim. A Solicitor can help you draft the Consent Order to protect your position for the future.
Kind Regards
Caroline
I would be grateful if you could kindly rate my answer. I am new to this service and positive feedback is gratefully received. Please note that we receive no credit for our work and we do not get paid unless positive feedback is received.
Customer: replied 1 year ago.

Hi

Thank you for your reply.

The problem is we are already divorced we got divorced 2 years ago, everything is fine, we have both moved on, i've just decided its time to sort the house out and try and get his name and he has requested this. Where we are having problems is the mortgage company won't accept me just on my own and being self employed. Would i be able to apply for a consent order now that you mentioned?

Many Thanks

Sam

Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Yes - as long as you haven't remarried and haven't previously had a court order in relation to the matrimonial finances then you can still apply for a consent order now.
There are cases were people were divorced decades ago and have now made a claim in respect of the matrimonial finances and the courts entertain these cases - so it's a really good idea to get a consent order to prevent this.
A Solicitor can prepare a consent order for about £200.
Just be aware that your ex might not be happy about not bring removed from the mortgage and so you should keep trying, otherwise he might ask the court to sell the property to get his name off.
Kind Regards
Caroline
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