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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33310
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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I left my husband of 22 years , 2 years ago, taking our children

Customer Question

I left my husband of 22 years , 2 years ago, taking our children ( now aged 16 and 21 ) . I was the victim of domestic violence throughout my marital life not just from him but the rest of his family too.
I moved into rented accomodation whilst he lived in our marital home.(joint mortgage) Within the 2 years seperation , he failed to make 12 mortgage payments. We managed to sell the house in Oct. 2012, but we have now received a bill of £34,000 which is the shortfall as the house was sold at less the price we bought it for.
My husband has now informed me that he has handed in his notice at work , he cannot pay towards this amount and that he will either be seeking bankruptcy/IVA. He has also since 3 March2013, stopped paying me child maintenance,says he has insufficient funds.
The house that he is living in now also belongs to both of us ( previously rented )and is also in joint mortgage. He says he may not be able to pay the mortgage.
I work, I am a full time teacher and have been for last 4 years, therefore not on main pay scale yet and can just about keep my head above water. Both my children are in full time education.
I am worried sick, I don't know what to do, please can you advise and help me?
Submitted: 3 years ago.
Category: Property Law
Expert:  Clare replied 3 years ago.
Hi
How much is the house he is living in worth and how much is outstanding on the mortgage?
Did you not wish to live there at all?
Claire
Customer: replied 3 years ago.

Thank you for responding.The house he is living in has an outstanding mortgage of @£179K and it has negative equity or if we are very lucky may get 5-10 K out of it.


The reason I'm not staying in it is because when I moved out, which I did without his knowledge ( it was the only way of doing it without facing further abuse from him) is because we already had a tenant in it.


When she moved out of it , about 1 year later , he moved in. I didn't get a chance.


 


Please could you help me. Although I am a teacher in full time employment, I am not on the main payscale yet and do not earn a great deal. I am not entitled to any benefits nor am I entitled to Legal aid. I am barely keeping my head above water now.


 

Expert:  Clare replied 3 years ago.
Hi
Would you like to move back there with the children (and without him)
Claire
Customer: replied 3 years ago.


There is a lot of work that needs doing to it, and my children aren't comfortable moving back there due to bad memories/experiences.


However if that was the only option I guess we would have to.


 


I cant see my husband letting me live there or signing it over to me, he has made that clear to me in the past.


 

Expert:  Clare replied 3 years ago.
Hi
Are there any other assets at all?
Claire
Customer: replied 3 years ago.

No, only our occupational pensions. I want to divorce him but I'm afraid to take steps in case he makes it difficult for me and I do not have any funds/savings for a long drawn out process. I'm even more afraid he will make a claim for my pension.


Unfortunately I lost my father recently , my mother is 82 years of age and i do not have anyone to turn to.

Expert:  Clare replied 3 years ago.
Hi
How much does he earn?
Claire
Customer: replied 3 years ago.

He has never divulged his exact income figure to me. However when I did leave him 2 years ago I asked CSA to get involved to recover Child Maintenace from him. They calculated £87 per week from him for my 1 dependent child. This figure is 10% of his income , so I'm guessing he was receiving wages of approx £ 42K.


The maintenance amount I received had not changed, I do not know if he received an increase in wage since. he has now left empoyment.


 


I receive £31K per annum gross.


 

Expert:  Clare replied 3 years ago.
Hi
Right I can see the problem - and that you are still frightened of him.
Do you know the extent of his pension - and indeed the extent of yours?
Claire
Customer: replied 3 years ago.
I have no information about his pension. He hAs worked for BAE systems for 15 years as An aviation safety consultant, then left in 2005 and worked for several different firms, the present and last one being DNV (London Bridge)
I have a teachers pension but I only qualified as teacher 4 years ago.current value is £1967.00
Expert:  Clare replied 3 years ago.
Hi
So you have a very small pension and he almost certainly has a larger one.
he is currently living in the only asset - an dis hoping to avoid the debt.
He has given notice - but it is unlikely he is going to give up having any income at all
You need to issue a Divorce Petition based on his Unreasonable Behaviour as soon as possible.
Once the Petition is under way you can apply to the court for the finances to be dealt with.
If you do not wish to return to the property with the child then you can ask the court to order a sale - and to seek an order then makes him leave the property so that you can deal with the sale and set of any monies received against the debt
If he goes Bankrupt you are right you will remain with the debt HOWEVER it is entirely possible that the courts will give you a larger share of his pension than you would otherwise have had in order to compensate you.
So far as the debt is concerned they cannot have what you do not have - so make an offer of instalments that is realistic and they wil have to accept it - they will not like it but they have little choice
Claire
Customer: replied 3 years ago.
Thank you for your advice. Could you please tell me if applying for a legal separation will protect me against further debts he may occur. How different is a legal separation from a divorce , is it a long drawn process, what would it entail ?
Please could you advise? Many thanks
Expert:  Clare replied 3 years ago.
Hi
May I ask why you do not wish to have a divorce?
Claire
Customer: replied 3 years ago.


Cultural obstacles I'm afraid and also the fear of a nasty , long drawn,expensive ordeal.

Expert:  Clare replied 3 years ago.
Hi
A Judicial Separation and a Divorce goes through much the same process I am afraid the only difference is that end of it you will not be able to re-marry
Claire
Customer: replied 3 years ago.

If I pursued the judicial seperation path, I could eventually, when cultural circumstances are favourable, apply for divorce , couldn't I?


 


Would you please be able to advise what the judicial procedure entails? what do I need to do?


 


Thank you for continuing to advise me.

Expert:  Clare replied 3 years ago.
Hi
Yes you can always go for a divorce later - although it means twice the cost of course.
The process is described here
https://www.gov.uk/divorce/overview
Just read Judicial Separation wherever it says divorce!
Claire
Customer: replied 3 years ago.

Dear Claire


 


Thank you for your advice, but it seems I have more questions and would be very grateful if you could advise further


 


1)Through either divorce or legal seperation can I force the sale of our house he is living in? Who would be responsible for the sale, the courts or us?


2)Would it be wise to do so as it is also negative equity?


3) Or can I force him to leave it and move into it with my girls?


 


I'm pretty sure he would not sign the house over to me as he has stipulated this in previous conversations.


 


Thank you once again for your time.


 

Expert:  Clare replied 3 years ago.
Hi
Yes through the financial side of either process you can apply to the court for an order either for the sale of the property - or the right to return there with the children and force him to leave.
Whether or not he agrees is irrelevant - this is about what the court considers is just
Claire
Customer: replied 3 years ago.

 


Hello Clare



If I apply for legal seperation have I any rights over his pension and vice versa.


 


Before he declares bankruptcy, and if he is man enough can I sign over the entire debt over to him, after all it is his fault.


 

Expert:  Clare replied 3 years ago.
Hi
Pensions do form part of the financial settlement yes.
However I am afraid that any debts that are in joint names will remain in joint names - and you will remain responsible for them if your husband goes bankrupt
Claire
Customer: replied 3 years ago.
Hi

He is 46 , do you think it might be possible that he has discarded his pension?

I don't know why I am so afraid to make a move

Many thanks
Expert:  Clare replied 3 years ago.
Hi
It is possible that the pension if frozen - and taking these steps are hard - so don't be so hard on yourself
Claire
Customer: replied 3 years ago.
If he does declare bankruptcy will the creditors take His occupational pension as an asset towards the debt?
Expert:  Clare replied 3 years ago.
Hi
That is a possibility - but it does not always happen - and if you get a pension sharing order before hand then your share would be safe
Claire
Customer: replied 3 years ago.
Hi Claire

Should I freeze my pension? Prior to teacher training I worked for Inland Revenue , part time hours for 17 years. I was only a clerical officer and my maximum wage was 11k in the final years there. I therefore have a separate civil service pension.



Expert:  Clare replied 3 years ago.
Hi
There is little point at this stage - any claim he has on it will be offset by the fact that you have the mortgage shortfall to deal with
Claire
Customer: replied 3 years ago.
Dear Clare is there no way I can contest paying the whole £34k? I have received some obnoxious txt messages from him saying he wants to move on with his life and that he wants me to make a decision about moving forward ( away from his life)
It seems he has 'stitched' me up and is planning to 'move on' after unloading all the debt on me. Not only that he Ia telling me he will be struggling to pay the mortgage on our house he is staying in.
Is there nothing I can do to stop him unloading his mess on me? It seems he is getting away it
Please advise. Much appreciated
Expert:  Clare replied 3 years ago.
Hi
So far as the Mortgage Company you are I am afraid liable - but you will be able to balance this in other ways regarding his pension and the other assets
Claire
Customer: replied 3 years ago.
Dear Clare
Can I force the sale of our home that he is living in without having to go down the divorce proceedings route? A recent house valuation of this property tool place and the estate agent reckons there is equity of possibly £10 k in it. I was thinking if I could force the sale of the house perhaps we could use this amount against the mortgage shortfall?
Many thanks for your continued advice
Expert:  Clare replied 3 years ago.
Hi
You can issue an application using the Trusts of Land and Appointment of Trustees Act to seek an Order for the Sale of the property.
However this would not enable the court to order that all the proceeds are used to pay the debt.
You would have to issue an application within Judicial Separation proceedings to achieve that
Claire
Customer: replied 3 years ago.
Dear Clare
I hope I still qualify to receive advice from you as I have another question. My husband who is living in our other home has asked the mortgage company Cheltenham an Glousester for an arrangement where he doesnt pay the mortgage on this house for 3 months as he is unemployed and looking for work. c&G have agreed it without consulting me although they said today that they did send a letter to me to infirm me of this agreement . I explained today to them that I hadn't received anything the post and was therefore unaware of this arrangement. As a result my credit rating has taken yet another stumble as it is showing missed mortgage payments.
I informed C&G that I wasn't happy that this agreement was put in place without informing me. They were not sympathetic .
Could you advise on where I stand at this point.
With regards to the arrears on the other house the husband has made an offer of £10,000 to RBS on both our behalf and we are awaiting their decision. Please could you advise?
Expert:  Clare replied 3 years ago.
Hi
You should make a formal complaint to the C&G about their action.
You may also wish to consider again the issue of forcing an immediate sale.
So far as the offer is concerned if it is accepted then well and good - but get it in writing before any money is paid over!
Claire

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