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Ask Clare Your Own Question
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 35050
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I have been separated from my wife for 8 years. She is 60 years

Customer Question

I have been separated from my wife for 8 years. She is 60 years old and I have been making payments towards the mortgage and other bills along the way. She is living in the property which is joint ly owned. I have a partner so don't live in the mortgaged previous family home. I have completed a basic divorce agreement and agreed to pay the mortgage until the end of the term which has approx 8 years to run. She does not want to move out of the property so we have agreed not to sell. There is about 40k equity but I am willing to forego this as I made the decision to leave. She works part time but says she finds it hard to make ends meet. We have two children but both over 30 and not living with their mother.

She will not sign the agreement and I have not previously sought legal advice.

Does there have to be a signed document after so long/what alternatives do I have under English law?
Submitted: 4 years ago.
Category: Family Law
Expert:  Clare replied 4 years ago.
Thank you for your question
I shall do my best to assist you but I need some further information first.
What income do you each have?
What is your pension position?
Customer: replied 4 years ago.
We both took our respective private pensions so there are no pension funds. I have a new job circa 35k and she has a part time post, not sure what her income is but it will be nominal, perhaps 8-10k. We basically agreed verbally that from now on I will just pay the mortgage until it ends, she will keep the house. The mortgage is 90k, the property is worth 130-140k.

She dealt with all finances I am really looking for a way we can keep to this arrangement but do I need something signed by her?
Expert:  Clare replied 4 years ago.
Are you actually divorced?
Customer: replied 4 years ago.
No. I am asking for your advice because she hasn't signed the divorce form. I need to know if this will have to go to court or if there are any other alternatives if she continues to refuse.
Expert:  Clare replied 4 years ago.
How far in the actual divorce process have you reached?
Customer: replied 4 years ago.
Apologies for the delay in coming back to you. I think it best to start again with this.

I am using the form downloaded from the government website. My wife is accepting of the basic proposals but she has a few stipulations. I am now in the position where i am looking for suitable wording to cover different situations that could occur.

The basics are as follows:-

1. The title deeds and mortgage contract will stay in mine and my wife's joint names but I will pay the mortgage payments monthly of £528 until it is repaid in full - another 13 years. The rates and payments coukd vary.

My wife will live in the property, I live with my partner.

Could you please provide some wording which would ensure that I will pay in good faith but only while I have the income to do so ie: my death, disability or loss of income would mean any outstanding payments thereafter would revert back to my wife (then ex-wife). Or if I am still alive, some arrangement to share the responsibility of payments would also fall back to her.

I would also want her agreement that she would be reasonable in granting her permission as joint mortgage owner to re-negotiate the loan to a shorter term or lesser interest rate to make the payments more manageable for me or when I am in a position to afford it, get the mortgage finished earlier than the current term if possible.or alternatively move to another lender offering a better deal.

2. My wife does not want any part of the house value to revert to my current partner or any other in the future.

Could you please provide wording to adequately explain that on my death, the property would be left to my current wife entirely if she is still living. On her death, the property would be sold and the proceeds split as follows - 20% to me, [email protected]% to our first daughter and 40% to our second daughter. I assume that if I am no longer living at that stage, my wife would leave the estate to someone if her choice and as above, she would take on any outstanding mortgage payments if I died while the mortgage is still outstanding as she will remain in the property if she chooses.

We would want this written in to the agreement but I realise that to protect any other assets I have and my current partner, I should probably make a will? My current partner is accepting of the fact that she would not want any entitlement to the value of the property.

3. I have a concern that I could be paying the mortgage for a long period but in the meantime my then ex-wife could re-marry or co-habit on a long term basis or some other significant event could happen whereby she could afford to contribute to the mortgage repayments. Basically, I could be paying the mortgage while she has someone living with her who could contribute and they could potentially inherit the property value in the future.

Coukd you provide some standard wording to cover this off so that I can enter this as a codicil to the papers.

Finally, I understand the divorce paper work is lodged with a Court. Is this definitely legally binding and would my ex-wife have any claim to future joint holdings I may have with my current partner?

I have been paying the mortgage since I left 8 years ago and I have been paying my wife money each month. I have stopped the payment to her and have paid 10k off of the mortgage but I am willing to continue on the basis as above, even though my wife's pension fund was larger etc because i left her so I want to appease her wish to stay in the property and she does not have the income to support the mortgage at the moment.

I hope you can help with this. There is probably standard legalised wording which I hope you can provide. I just want to keep things simple but at the same time ensure that I am not left liable for something in the future that I may can't meet contractually or continue to pay if she has another income earner living with her or perhaps comes in to some money which could entitle me to be released from part of the burden.

I am 58 now, so I would need to work for another 13 years to support the mortgage, unless I can afford at some point to pay more and reduce the term outstanding. I have no intentions of leaving work early to side step the responsibilities of paying the mortgage.

Many thanks

Expert:  Clare replied 4 years ago.
Is this a repayment or interest only mortgage?
Customer: replied 4 years ago.
Repayment mortgage
Expert:  Clare replied 4 years ago.
Thank you for that
How far has the divorce reached an can you confirm that what you actual wish to do is draft a final financial order?
Customer: replied 4 years ago.
Hi. Would a financial order be a type of statement of intentions which would either be incorporated in to the petition form or enclosed with it?
Expert:  Clare replied 4 years ago.
There is no need to submit any such paperwork with the Petition - indeed it is pointless to do so as it has no force whatsoever.
The Divorce Petition is about ending the marriage - no more and no less
You are entitled to issue the Petition immediately.
IF your ex chooses to defend the matter on the basis that the financial issue shave not been dealt with then the way forward will be to have a Financial Consent Order drawn up setting out the agreement which would appear to be
1. The former matrimonial home will be transferred to your ex but the mortgage will remain in joint names
2. You will continue to pay the mortgage until she remarries or cohabits or the mortgage is completed
This is a generous offer and one which the Court will see as more than adequate provision
I hope that this is of assistance - please ask if you need further information
Customer: replied 4 years ago.
Hi Claire. As this is to be a DIY divorce as far as possible I would want to draw up an agreement myself which she would agree to, prior to filing the petition. This should prevent any objections to the petition for divorce on her part.

As in my previous question - could you please provide a few paragraphs of legalised wording that would cover off items 1,2 and 3?

Expert:  Clare replied 4 years ago.
There is truly no point in doing so - it will not help and frankly may hinder
Better to get the divorce itself under way first.
However if you are wanting to do this then what you need is a draft Consent Order drawn up that you both agree to - and that is not something that can be done in this forum especially as it is not possible to have the actual arrangements that you outline and there will need to be some compromises to make it work as an Order.
There is a set of precedents here
Look through it - chose the ones you think you like and then send the outcome to me and I can work on it with you
Customer: replied 4 years ago.
Thank you. Would a consent order need to be a legal document or could it be mutual agreement to a number of wishes, signed by both parties. And if yes, how could this be legally recognised - would it need to be?

If the petition stands on it's own and starts off the divorce, I assume the main thing is to get this through without objections from the other party. So if something could be signed with mutual agreements but not included with the petition because my understanding from you is this wouldn't make a difference in terms of the petition, would this be the way forward.

If a list of agreements could be reached, what would be the best way to ensure this list would be called upon in the future if necessary. From what you are saying, it seems this part would not be the concern of the Court but from my view point, it would need to be legally binding in some way.

The main wording needing to be correct is around what happens if I can no longer meet the mortgage payments due to death , disability or loss of income and my ex-wife cohabiting with someone who could contribute to the mortgage, buy me out or benefit financially when I am still paying the mortgage.

Expert:  Clare replied 4 years ago.
In order for the agreement to be binding and enforceable it needs to be in the Form of a Consent Order that is sealed by the court.
If all you wish to do is create a letter that reflects the agreement that you reach then an informal letter signed by both of you is more than equate - and is NOT sent to the court with the Petition.
However once the Decree Nisi has been granted that agreement should then be turned into a Consent Order and sent to the Court.