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Clare, Solicitor
Category: Law
Satisfied Customers: 35065
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My brothers' wife left him over six years ago for a man she subsequently lived with. At that time the home they had purchased approximately two years previously was in negative equity and the only way to stop the sale of the property at under the price they had paid for it was for one of them to rent out rooms in the house. My brother offered to move out and allow his wife to do this but she refused and demanded to be taken off the mortgage and the deeds and the land registry as she did not want any any responsibility for the negative equity debt. My brother finally asked her for a divorce several months ago on the grounds that they had been separated for over 5 years. In the meantime the house has come out of negative equity and she now wants him to sell the house and give her £25K. She has contributed nothing towards the mortgage since she left and my brother had to also pay back a loan to her parents for the money they borrowed as a deposit - approx. £8,000. My understanding is that after 5 years a divorce would be granted even if she tries to contest it, but if she tries to claim a share of the property will that be an issue or, as she has no legal title to the property will she have to bring a case separate to the divorce to claim? If it is taken into consideration as part of the divorce would my brother be entitled to ask that she pay back half of the deposit loan and half the mortgage payments he has made on his own over the past six years? Many thanks. I should also add that there are no children from the marriage and that my brother also pays approx £500 a month to the CSA for children from his first marriage. Although the house has come out of negative equity it probably has less than £40K in it.

Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
How much is the house actually worth an dhow much is outstanding on the mortgage?
is it a repayment or an Interest only mortgage?
Customer: replied 2 years ago.

My understanding is that a similar house in the same road sold several months ago for £204K, however I doubt my brothers' house would achieve that figure as they purchased it with the intention of renovating it and due to the circumstances he has not been able to afford to do the renovations they originally planned. It's structurally sound but very dated and in dire need of a revamp so realistically it might achieve perhaps £195K. As far as I know the outstanding money on the mortgage is £166K and it is an interest only mortgage as he cannot afford a repayment mortgage. He has informed me that he has already spoken to the existing mortgage company about the possibility of remortgaging but that they have told him that they would not lend the extra £25K his wife is asking for as they feel there is not enough equity in the property.

So in fact the current equity is in the region of £25,000 and that does not take a account of the £8,000 that he has paid to her parents - is that correct?
Even if he cannot borrow more will the mortgage company release his ex from the mortgage?
Customer: replied 2 years ago.

Yes that is correct, I would say the current equity is certainly no more than £30K depending of course on the price a buyer would be willing to pay for the house in its present condition, which is always a slightly grey area. My apologies, I obviously didn't make it clear in my original statement that when my brothers' wife demanded to be taken off the mortgage and deeds etc when they first split up as she did not want to be responsible for the negative equity debt, this was done, she signed the house over to my brother and the mortgage and deeds are solely in his name, he assumed sole financial responsibility for the house and paid back the outstanding balance of the loan to her parents. This is why I am trying to ascertain if she can still make a claim against it as part of the divorce or if she would have to bring a separate action against him to try to obtain money from the property.

What assets does she now have?
Customer: replied 2 years ago.

As far as I am aware she has not purchased another property in the subsequent six years, she is still living in the property she moved into with the man she had an affair with (we don't know if their relationship is still ongoing) and I am assuming that this is a rental property. When she left my brother she stripped the house of every item of their joint possessions she possibly could. She refused to have a joint bank account during their marriage so the mortgage was always paid out of my brothers bank account and I understand that they split household bills/groceries etc. Her responsibility during their marriage was to buy furnishings etc for the house (they previously lived together in my brothers rented flat and I am afraid she threw all his old furniture away when they were due to move as she wanted new furniture) and she took the viewpoint that if they had been paid for out of her bank account they were her personal property including the two cars they had. The only items of furniture she left in the house were ones that would not fit into her new home and she insisted that my brother purchase these from her.

technically within the Divorce proceedings his ex can indeed make a financial claim and try and obtain 50% of the equity (which would appear to be more like £10,000 than £25,000)
However her chance of success are limited since it is clear that what assets they had were divided at the time of separation and there are no children involved
Your brother should move ahead with his divorce as soon as possible and invite his ex to make a claim if she believes she will be successful.
I hope that this is of assistance - please ask if you need further details
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