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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11753
Experience:  30 years as a practising solicitor.
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I am preparing a separation agreement and my husband. We are

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I am preparing a separation agreement for myself and my husband. We are agreed upon everything and just need to put it into legal terms. I've purchased a template from Lawpack. There is one section that I need to amend to cover our mortgage situation, and I wanted to run the wording by you to see if there are any obvious problems with the way it is worded or I've missed anything glaringly obvious:---------12. The husband will on or before 4th September 2021 transfer to the wife his whole right, title and interest in the property known as [insert address of property] registered in the Land Register of Scotland under Title Number [insert title number]. The wife undertakes to take over responsibility for the mortgage, Council Tax, fuel, telephone, repair costs, insurance and other charges as at 4th July 2013.12.1 On or before 4th September 2021, the wife undertakes to sign the necessary Discharge of the existing Standard Security over the property in order to discharge the husband from all liability and obligation in respect of the existing mortgage.(IS THE FOLLOWING BIT REQUIRED, it was in the original template. My husband does not live in the property and has not done so since 2013? However, it is owned jointly and in common, so I guess this doesn't apply? Or is there something else I should add?:
{ At the same time the husband will deliver to the wife a validly signed and notarised Renunciation of his occupancy rights in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 as amended in respect of the property. } )12.2. Neither the husband nor the wife shall further grant a Standard Security over the property nor their interest in it, nor lease it nor enter into any other kind of arrangement or agreement in letting the property in writing or made orally without the prior written consent of the other party.-------The date in 2021 relates to our youngest son's 18th birthday. This situation has come about because although I can pay the mortgage without problem, the mortgage company (Birmingham Midshires) is no longer able to arrange equity transfers on their mortgages and I'm not currently in a position to remortgage but expect to be able to do so in the next couple of years.Thank you.
Submitted: 1 year ago.
Category: Scots Law
Expert:  Nicola-mod replied 1 year ago.
Hello,
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Customer: replied 1 year ago.
I'm happy to wait, thank you :)
Expert:  Nicola-mod replied 1 year ago.
Hello,
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Thank you for your patience,
Nicola
Expert:  JGM replied 1 year ago.
A couple of points: 1. "the wife undertakes to sign the necessary Discharge of the Standard Security....." Isn't right. The lender signs the Discharge. You would undertake to procure the signed Discharge from the lender. 2. The renunciation of occupancy rights is necessary so you should leave that in. 3. You would also need a declaration of solvency from your husband if he is to transfer the house for no monetary consideration. 4. Birmingham Midshires is part of Bank of Scotland plc and it is news to me that they won't allow variation of a Standard Security from joint to a single name. 5. Even if you ar drafting this agreement yourself, your husband has to be given the opportunity of taking legal advice and that should be stated in the agreement. Were he to change his mind later he could raise this as an issue. I hope that helps. Please leave a positive rating so that I am creditd for my time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11753
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you JGM, that's really helpful. Just one more quick question - re. the declaration of solvency - we plan to include statements showing full financial disclosure at the back of the agreement, which will show things are being shared fairly. Will that be adequate or does it need to be a specific statement? Re Birmingham Midshires, just for reference, when I wrote to ask them about taaking my husband's name off the mortgage they wrote back saying "Due to Mortgage Market Regulations, we have withdrawn from processing regulated business including transfer of equity applications so are unable to consider your request." I wasn't sure exactly what they meant by that, so phoned them, they explained that the equity could not be transferred and I needed to take out a remortgage. I was then shuttled very quickly to another person who was Bank of Scotland who tried quite hard to sell me a remortgage. I declined, on the basis that I needed to seek further advice first. If they have informed me incorrectly, then I need to pursue that with them further. Thank you.
Customer: replied 1 year ago.
Sorry, no need to reply, I found a Declaration fo Solvency proforma. :) Thank you for your help.