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Ask Clare Your Own Question
Clare, Solicitor
Category: Property Law
Satisfied Customers: 35575
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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I am buying my ex husband out of the property we jointly own

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I am buying my ex husband out of the property we jointly own and the property and mortgage is transferring to my sole name. We have come to a private arrangement and do not need to instruct solicitors to act on our behalf. The lender is insisting that my ex husband takes legal advice and instruct a solicitor to act for him. He does not want to do this. The lender is telling me they will not proceed unless he does this. Can they do that?

Thank you for your question

My name is Clare

I shall od my best to help you but I need some further information first

When was the Decree Absolute and has there been a financial Order (just checking)

Customer: replied 2 years ago.
The decree absolute was in December 2014. We did this without solicitors and drew up a separation agreement between us and separated our finances in 2012. There was no financial order from the court.
Customer: replied 2 years ago.
No thank you re the call - can we continue with the online advice please.
Customer: replied 2 years ago.
Hello? Just checking you are still there and planning to respond online? Thanks.

Sorry about the site popups - if I could stop them I would!

It is the lack of the court order that is worrying the solicitor for the lender since technically your ex could make a further claim and by doing this he could lose that chance.

I think it is nonsense but they are anxious to protect their insurance risks.

You have two options (well three if you include abandon the transfer)

Your ex can spend half an hour with a local solicitor and obtain confirmation that he has done so and is happy to go ahead OR you can have a Consent Order drawn up and submitted to and sealed by the court.

If you take the second route your ex will still have to have his Identity forms certified by a local solicitor.

I hope that this is of assistance - please ask if you need further details

Customer: replied 2 years ago.
Hi. the lender doesn't know there is not a financial order. I suggested extactly what you have said that m ex spends half an hour with a solicitor and confirms he is happy to go ahead. The bank says this is not good enough and that he HAS to instruct a solicitor to do it all on his behalf.

Which bank is it?

What do they actually want a solicitor to do?

Customer: replied 2 years ago.
The bank is Lloyds and they want the solicitor to act on behalf of my ex re the physical transfer of title. They are saying that taking independent legal advice must alo encompass the advice plus the actual transaction. They are insisting that their conveyancer cannot liaise directy with my ex.

Just to check - are you staying with the same mortgage provider?

Customer: replied 2 years ago.
I am.

What is the actual agreement - I assume that you are simply buying him out?

Customer: replied 2 years ago.
I am buying him out, taking on the existing mortgage in my sole name and the transfer of property will be from joint names into my sole name. We have come to a private agreement re the amount I will be giving him.

It is not open to anyone to force a person to use a solicitor.

It is posisble to deal with every legal transaction (including if you want in the Supreme Court) personally - it is an important legal freedom.

If your ex feels content that he can handle the paperwork (not that there is a lot) then the Bank have no right to insist that he gets representation

If their issue is the lack of a court order then that can be dealt with.

Unfortunately the problem is that if they make it a mortgage condition you have a problem - and it can only be circumvented if you chose another lender

Customer: replied 2 years ago.
That all makes perfect sense. Thank you for everything. I suspect the bank will say it is a condition of the mortgage. Really impressed with the service!

Thank you - I hope all goes well

Clare and 2 other Property Law Specialists are ready to help you