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ukfamilysolicitor, Solicitor
Category: Law
Satisfied Customers: 866
Experience:  Qualified Solicitor Currently specialising in Family. Also experienced in Corporate, Employment, Civil Litigation, Debt Recovery
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Daughter and her ex husband are tenants in common

Resolved Question:

Daughter and her ex husband are tenants in common for their property. Ex has been paying mortgage but says he cannot afford to pay any more and will let the house be repossessed (he has another house with his new partner).
Investigation shows there are two mortgages secured on the property, one with the original Building Society lender (balance £110,000) and a second one which we believe was a debt consolidation loan (balance £55,000).
The current sale value of the property is circa £170,000 so, after any selling costs etc there would be zero equity, and daughter would be homeless with her children!
To resolve this, I'm thinking of suggesting that, if he wants to walk away, we could complete a Deed of Trust whereby he assigns 100% of future equity to my daughter in exchange for a payment from me, through a solicitor, of £55k to the second mortgage company to clear that loan. He would retain legal title on the mortgage in the interim but the Trust Deed would state that he would sign a Transfer Deed when requested.
This would £110,00 owing to the primary lender. My daughter would then make the monthly mortgage payments (with help from me) until we can arrange for a re-mortgage jointly with her brother who is willing to help. On her income she would normally get a mortgage of circa £70k, but her brother, who is an ex-pat, has a substantial income.
At the re-mortgage point we would get the ex husband to sign the Transfer Deed.
Does this all make sense?
Thanks for your help
Submitted: 1 year ago.
Category: Law
Expert:  ukfamilysolicitor replied 1 year ago.
Hello Welcome to Just Answer I am a Solicitor and will try and assist you. Please may I ask: - when your daughter and her husband were divorced - was there any financial order in respect of the matrimonial finances? Kind Regards Caroline
Customer: replied 1 year ago.
They divorced (reasonably amicably!) in 2008. There was no financial settlement. Ex- husband continued to pay the mortgage and also paid a voluntary maintenance amount of circa £200 per month in respect of their two children (now aged 11 and 13) hich has also stopped now of course, although he still has the children alternate weekends.
Ex- husband is a chemical engineer with a PhD who, until recently was earning circa £80k a year with the off-shore gas industry. He has recently been made redundant and is no longer employed.He lives with a new partner with whom he has had another child, and is not very amicable these days!Post divorce, daughter took a PGCE and is now a primary school teacher.Thanks
Expert:  ukfamilysolicitor replied 1 year ago.
Hello Thank you for your response. Another question - has either your daughter or her ex remarried? Kind Regards Caroline
Customer: replied 1 year ago.
Neither have remarried - daughter is single, ex husband co-habits.
Expert:  ukfamilysolicitor replied 1 year ago.
Hello Thank you for your response. The correct way of dealing with the property – given that there has previous been no financial order is respect of the matrimonial finances – is to now obtain one. You have to be aware that as there has been no previous financial order and neither party has remarried – then even with a deed being drawn up – either party could still make a claim in respect of the matrimonial finances. In realistic terms – what your daughter is seeking – is that the property be signed over to her. This can be agreed (if the ex husband also agrees) in an order and submitted to the court for approval. I will detail for you the correct process. The first step to dealing with the matrimonial finances is full and frank disclosure of all of the assets and liabilities for both your daughter and her husband. This includes everything and not just the property – but also any other assets they both may have. With a long marriage, over 5 years, the normal starting point for the division of matrimonial assets is a 50/50 division of all assets. The Matrimonial Causes Act sets out several factors which can lead to departure of the 50/50. A few examples, the earning capacity for both of you for the future, future care of children. If the only asset is the property – then this is all that will be delat with – but if there are other assets that say the ex husband has – such as savings ect – then this also needs to be included in the process otherwise your daughter could be selling herself short. I would suggest that your daughter consider referring her case to family mediation. Family mediation will help both your daughter and her ex husband through the process of full and frank disclosure as well as discussions about division. That are lots of family mediation services and there will be one local to you. If you just google family mediation in your area and then you can give them a call to get the ball rolling. If the husband engages with mediation and matters can be agreed as to who will get what - then a consent order can be prepared which can be submitted to the court for approval. Once this has been approved by the court – it becomes legally binding. It can be agreed that the ex will no longer have a claim over the property and if the court approves this – this is legally binding. The problem that you have with any deed of trust – is that a family court Judge has not had the ability to be able to approve the same. In reality – the ex husband could still at a later date seek to make a claim in respect of the property. Whilst a deed would be seen by a Judge as an intention – family court Judges do have a wide discretion and are not legally bound to any deed. If her ex husband wont provide full disclosure or engage in mediation then you should make an application to the court so that the court can compel him to engage in disclosure and the court can also make the decision as to what the split should be – ie whether or not he should have any interest in the property. Given that there is little equity and a home is required for the children – the court would unlikely order the house to be sold so that interest in the property can be realised. In respect of the mortgage – it can be agreed in a consent order or ordered by a Judge that your daughter will use her best endeavours to remove her ex husband from the mortgage. Basically an order of the court is not binding on a mortgage company – as they are a third party and the mortgage company often like to be able to retain a right to pursue both parties if there is a shortfall. Using best endeavours – basically means that your daughter will keep trying to get the mortgage in her own name in the future. This doesn’t stop the land registry documents being changed into the name of your daughter only on the basis of the order and it also doesn’t change that the order is full and final preventing the ex from attempting a further claim in the future. Please do not hesitate to ask if I can clarify anything for you or assist you further. Kind Regards ***** ***** kindly remember to star rate our service so that we receive credit for helping you today.
Customer: replied 1 year ago.
Thank you for this. Could you give me some idea of the usual timeframe (if there is one), between making the initial application and the final ruling?Thanks
Expert:  ukfamilysolicitor replied 1 year ago.
Hello If matters can be agreed at mediation - then there is no reason why a consent order cannot be submitted to the court within a few weeks for approval. The court would put the consent order in a Judges desk work pile. If the Judge approves the order then copies the court with seal will be sent out from the court usually within a couple of weeks. This then finalises the matter. Court hearings are rare when a consent order is submitted for approval - if a Judge considered that what he was being asked to approve was unfair then he / she could ask for a hearing - but this doesn't happen often in my experience. Please do not hesitate to ask if I can clarify anything for you or assist you further. Kind Regards ***** ***** kindly remember to star rate our service so that we receive credit for helping you today.
Customer: replied 1 year ago.
Thank you for your informative replies. I just have a couple of final questions as, whilst mediation and court applications are taking place, there will be arrears building up on the mortgage with impact on credit history etc.1. If her brother was to buy the house at market value (which would clear the mortgage debt and leave no equity), she would have no fear of repossession, arrears mounting up or credit report issues. This would then remove the house from the equation, and we can subsequently decide within the family how best to go forward. Once this is done and out of the way, she would then apply for the Financial Settlement. As she would then have no property asset, but her ex already has another property, would there be any impact from this action regarding the Financial Settlement? Appreciate your views regarding if this could be a sensible option.2. We anticipate that her ex will ignore an offer of mediation and probably decline to submit a Form E, how long could this process take if he fails to cooperate?Many thanks for your help.
Expert:  ukfamilysolicitor replied 1 year ago.
Hello Thank you for your response. Just be aware that the husband may still argue the house, even if bought by the brother is a matrimonial asset. The court can still include the asset even if it is no longer owned by your daughter but your son. So if you can hold on until after the matrimonial finances ave been resolved - this would cause less of an issue. Perhaps speak to the mortgage company about reduced payments in the interim. If you have to go through the full court process - this could take months. The court will make the ex engage in the process at court. If he doesn't the court has the power to force him to engage by committing him to prison if he doesn't. Let me know if I can help you further. Kind Regards Caroline Please kindly remember to star rate our service
Customer: replied 1 year ago.
Last one before five stars for your advice -
Assuming that they can jointly agree that she would sell the house and retain any equity from the sale (which they are both aware would be zero), and also agree on maintenance issues etc, presumably this becomes a legally binding agreement?If she then subsequently sells the house to her brother I assume that there would be no impact as the identity of any buyer would no longer be relevant?
Expert:  ukfamilysolicitor replied 1 year ago.
Hello From my perspective as a family solicitor - no it would not matter at all who your daughter sold the house to after an order was obtained. In respect of any tax implications etc - which I am not sure if there may or may not be - best to check with a financial adviser. Let me know if I can help you further. Kind Regards Caroline
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