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ukfamilysolicitor, Solicitor
Category: Law
Satisfied Customers: 1431
Experience:  Qualified Solicitor Currently specialising in Family. Also experienced in Corporate, Employment, Civil Litigation, Debt Recovery
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Divorce and property questions

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I have filed for divorce from my husband on the grounds of adultery. it is amicable. he will sign the papers. we have a 3 year old son. we have a house and a joint mortgage but tied into the mortgage is an unsecured loan. I have called the mortgage company and they will not let me take my husband off the mortgage unless we settle the loan which we both cannot afford to do. my question is, is there a legal document which can be drawn up which states that although he is on the mortgage he doesn't have any ownership of it - he will not be contributing to the mortgage he will just pay me child maintenance and half of what the loan is. my worry is that in 10 years time he could come back to me and say half of the house is his. I need something in writing that states the house is mine although he is on the mortgage, that he is leaving all the contents, fixtures, fittings everything to me and that he agrees to pay half the loan for the duration of the term and also x amount of child maintenance - is there such a document? or as he is on the mortgage does he legally own half the house?

Welcome to Just Answer
I am a Solicitor and will assist you.
It is quite common for Mortgage companies to not want to release one party from the mortgage straight away. The mortgage company has a binding contract with both of you - which allows them to pursue either of you should there be a short fall and they don't like to give this away easily.
I note that you are starting the divorce process. It is possible to lodge a 'Consent Order' with the court with your application for decree absolute in the divorce proceedings to resolve the issue of the matrimonial finances - it can be stated that the house and contents are yours and also the agreed maintenance. A Solicitor can prepare such an agreement for only a couple of hours of their time.
There is a £50 court fee to pay when you submit your consent to the court for approval. If the Judge stamps your consent order then it becomes legally binding. Even if your husband is still on the mortgage the equity is yours.
It is worth instructing a solicitor to prepare the consent order for you as they will ensure that you position is protected for the future.
Kind Regards
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Customer: replied 2 years ago.

Thank you for your response. is it called a clean break order or is that different to a consent order? - also will he have no claim whatsoever over the house - I don't just mean the equity I mean the house as I am paying the mortgage the house will be mine together with the equity.

Good Morning
It is a Clean a Break Order that you want - this prevents all future claims.
Consent Order is the general name for orders that are submitted by agreement of the parties rather than being ordered by the court. A Clean Break order can therefor be submitted by consent if you both agree.
Kind Regards
Positive feedback is gratefully received
Customer: replied 2 years ago.
What if we have negative equity in the house, how does that factor into things, does he have to pay his half of the negative equity ? Does that mean he has a claim over the house when in time it is worth something? What happens if he goes bankrupt? Does that affect me if he's named on the mortgage and the loan?
Thank you for your response.
Unfortunately there is no court order that will bind the mortgage company.
If the clean break gives up your husbands right to the house then that is the legal position in relation to the equity in the future - it would be all yours.
If you defaulted and the mortgage company sold the house at an undervalue then they could choose to pursue either of you for the shortfall.
A good Solicitor would put an indemnity clause in an agreement - which means that should the party giving up their legal right to the property not be removed by the mortgage company - and in the event of being pursued for a shortfall - they could make a claim for anything they have had to pay from the other party. In reality this doesn't offer too much protection - because if one person was to default - then it is likely that they wont have the money to claim back from.
Kind Regards
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