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UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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HelloMy wife and I are divorcing and have a joint mortgaged

Customer Question


My wife and I are divorcing and have a joint mortgaged property.

We are in a DMP and therefore I cannot get a mortgage to buy her out and, as I understand, I cannot take her name off the mortgage without re mortgaging.

Things are quite amicable and she is moving out of the house of her own volition to move into rented accommodation. She is happy not to have the house as I owned it for some time before she moved in and she has always considered it my house. I did want her to stay in it but she doesn't want to.

As neither of us can get a mortgage with the DMP, is there anyway I can guarantee occupancy whilst we still have the joint mortgage so she cannot change her mind later?

I will be paying all the bills and will be giving her money to the value of half the equity

Thank you
Submitted: 3 years ago.
Category: Family Law
Expert:  UKfamsol replied 3 years ago.
Hello and thanks for your question.

I need a bit more information to be able to answer:

Has a divorce petition been filed at court yet?
What is a DMP?
Customer: replied 3 years ago.



A DMP is a Debt Management Plan.


A divorce petition hasnt been filed yet





Expert:  UKfamsol replied 3 years ago.
Hello and thanks for the extra information.

Well done for keeping things amicable.

When a coupkle separate, they can coem to whatever agreement they like regardign the former matrinlinal home (taking into account any conditions imposed by the building society of course) - but that agreement is only legally binding if made into a court order.

So at the moment everything between you & your wife is agreed - she moves out and you pay all the bills - but naturally as you can't buy her out at present, you want the security of knowing that she can't just move back in at any time on a whim - because trust can break down.

Once either spouse has filed a divorce petition at court, either one can apply to the court to ask the court to decide how the matrimonial assets should be divided, if they can't agree between themselves. The former matrimonial home is not treated in isolation, but as one part of ALL the matrimonial assets. The matrimonial assets are everything on your name, everything in her name and everything that you own jointly. Pension entitlements, savings, premium bonds etc of each of you, all count as matrimonial assets as well as the equity in the flat, so you need to add EVERYTHING together to see what your total matrimonial assets are.

The court starts from the position that the matrimonial assets should be divided 50:50 - then considers reasons why that should not be the case. eg if one person has a significantly lower income than the other, and/or will be providing a home for dependent children, then that person can argue for a more than 50% share.

I'm now going to work on the assumption that neither of you have any savings or other assets, that your incomes are broadly the same, and that you have no children. If so, then yes you are correct, you should each get 50% of the equity. (If you do have other assets, divide the total by 2. If what you already have in your name is more than this, you will have to pay your wife the difference, if she has more than half, she will have to pay you the difference.)

If you and your wife are in agreement, and a divorce petition has been filed at court, then a solicitor can draft a consent order in the terms of your agreement, which you both sign. This is then sent to court, and ooirvide the coirt approves it as being fair to both parties, once entered on to the court record, teh consnet order is as binding as a court order made following contested proceedings.

In your case, the order would say:

1.that you and your wife agree that you are to occupy the property to her exclusion (which means that despite having her name on the deeds, she is not allowed to enter or occupy the property)
2. that you will pay all the household bills and all of the mortgage payments and payments due under the DMP and buildings and contents insurance
3. that you will indemnify her against arrears of mortgage or payments due under the DMP from the date of the order (as your wife's name will stay on the mortgage deed, the buiklding society can come after either of you if the mortgage gets into arrears, so if they do cahase her for the mortgage, and she has to pay them, "to indemnify" in this order means that she can then sue you for any sums she had to pay to the building society which this orders says that you agreed to pay)
4. that on the first of the following "trigger events" to happen, the flat to be put on the market and sold, and you are each to receive 1/2 of the net sale proceeds
The "trigger events"
- the ending of the DMP
- your remarriage or cohabitationfor a period of at least 6 months

You need to get the divorce petition into court asap, then you need to get a solicitor to prepare a consent order for you both to sign.

Here's where to find a specialist family law solicitor:

I hope this helps and I wish you the best of luck.

Thanks and best wishes...

Expert:  UKfamsol replied 3 years ago.
Hello again

I see that you have looked at my answer but not accepted it. Is there's anything in your question you feel that I have not answered, or anything in my answer you would like me to clarify?

Let me know - I'll do my best!