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F E Smith
F E Smith, Advocate
Category: Family Law
Satisfied Customers: 10648
Experience:  I have been practising for 30 years.
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I divorced about 8 years ago after splitting up with husband

Customer Question

I divorced about 8 years ago after splitting up with husband 12 years ago. I have made full mortgage payments to date.At the time of divorce there was no equity in the marital home therefore my solicitor proposed a consent order be placed which my husband agreed with : that he had no further financial interest in the property however i would continue to make all payments and if i fail to do so he can sue me. I also agreed i would take all reasonable steps to have his name removed from the mortgage.We have 2 children still in education 16yrs and 13 yrs.I have tried to get the mortgage just ij my name but the building society state i dont earn enough to do so even though i make the paymentsMy ex is now threatening me and has said i have to put the house up for sale by the end of June.There is a possibility that there is still no equity in the house. Which i understand any shortfall on the mortgage would need to be paid in order to sell.My questions are :1. If i sell and negative equity and solicitors, estate agent fees to pay , am i liable for these with this consent order. Or will he have a legal obligation to pay 50% as he is still on mortgage ?2. If there is equity. Can he force me to sell with having children still at home. His argument to this is he can then buy a house and the children can live with him.I am more than happy to have him removed from the mortgage but i dont want to find myself homeless and owing thousands to the building society?RegardsJulie
Submitted: 19 days ago.
Category: Family Law
Expert:  F E Smith replied 19 days ago.

Hello for clarification - who was paying the mortgage?

have you looked on Zoopla etc to see if your property has increased in value at all?

Customer: replied 19 days ago.
I have been paying the mortgage for the last 12 years as stated.Yes. The property hasnt increased in value . I am arranging to have it valued to confirm this.
Customer: replied 19 days ago.
Dont want to to switch to a live phone call .
Expert:  F E Smith replied 19 days ago.

If there is no equity in the house and you have dependent children, a sale of the house is not on the cards until the youngest child reaches 18 or there is equity in the house sufficient to provide a home for you and the children until then and also give your ex husband a chunk of money.

In these circumstances, you don’t have to sell if you don’t was to.

The children may be able to live with him but at the ages they are, they would be able to make their own mind up on the court would have keyed of that.

Even if a sale of the house was on the cards, if it’s in negative equity, you cannot be forced to pay that you don’t want to although of course, he could pay it.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.

Customer: replied 19 days ago.
What i really nerd to know is if we sell and have to pay any shortfall on mortgage and costs who is liable. Is it me because the consent order states i will pay the mortgage or is it both of us ?
Expert:  F E Smith replied 18 days ago.

Although there may be a consent order whereby the properties get sold, If you can’t agree on split of the shortfall, then it doesn’t get sold and it’s back to court to get the court order on who is responsible for that..

Customer: replied 18 days ago.
if there is a shortfall would i be liable if the consent order states ive agreed to meet monthly mortgage payments ?
Expert:  F E Smith replied 18 days ago.

Thank you. Now I see the extra information, I don’t think this is within my sphere of expertise and knowledge and therefore, I’m going to opt out for another expert. It’s now open to all experts. Kind regards

Customer: replied 18 days ago.
What happens now as in no further forward with the advice ive been given to date ?
Expert:  F E Smith replied 18 days ago.

I apologise. I don’t see why you got that message that said this wasn’t within my sphere of expertise because it is.

Reply that you should have got was, “if there is no mention in the consent order of there being a shortfall, then the property cannot be sold unless you and your ex agree how you are going to pay the shortfall. If you can’t agree, it’s going to go back to court and I think it highly likely the court would order the shortfall to be paid between the two of you. It would depend on the financial circumstances of both of you as to whether it would order one or the other or equally.

You simply cannot sell the property if this shortfall unless you agree based shortfall and the court order does not mention the shortfall