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Peter Collins
Peter Collins,
Category: Property Law
Satisfied Customers: 4188
Experience:  Barrister at Self Employed
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My ex civil partner and I separated over 2 years ago. I have

Customer Question

My ex civil partner and I separated over 2 years ago. I have remained in the family home with our 3 children. The property and mortgage are all in my ex partners name. Since January she has stopped paying the mortgage. I am paying more than half, but can not make the full payment on my part time wages. We are currently at court for a financial order, but nothing in place yet. My ex refuses to engage with the mortgage company and so it has been based over to a debt company who are looking to start repossession order. I have written to both the mortgage company and debt company giving them full disclosure of the situation. But as the debt is not in my name they will not discuss the matter with me. My ex partner believes that by having the house repossessed before an agreement is made on the financial order means that she will get all money left in the equity to herself. I have a charge on the house via the land registry as well stating my financial interest in the property. What can I do stop myself and 3 children from becoming homeless?
Assistant: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: Steps I’ve take are to place a charge on the property and I began financial proceedings at court in March. I also have an occupation order.
Assistant: Have you talked to a lawyer about this?
Customer: No as the last solicitor I used for my divorce decided to complete on my divorce before a financial agreement was made. This allowed my ex partner to remove my home rights order on the property. The soliciting firm have acknowledged liability for this and it is being investigated by the legal
Assistant: Anything else you want the Lawyer to know before I connect you?
Customer: ombus
Submitted: 13 days ago.
Category: Property Law
Expert:  F E Smith replied 13 days ago.

Good afternoon. I will assist with your question - be aware this is an email not chat service therefore i maybe delayed in replying.

are the children from the relationship?

how old are they?

how long were you together and in civil partnership in total?

how long have you been waiting for the outcome from the ombudsman?

Customer: replied 13 days ago.
The children are from the relationship and my ex is legally the parent of all 3.
Customer: replied 13 days ago.
The children are aged 10, 8, 4
Customer: replied 13 days ago.
Our civil partnership last for 10 years and we were together for 11
Customer: replied 13 days ago.
I have been waiting since July for the ombudsman
Expert:  F E Smith replied 12 days ago.

I am assuming that this is a legal registered civil partnership and that you were not just living together.

 

A person is not responsible for the mortgage or rent or the bills of a house that they do not live in although they remain liable to the lender or landlord if the other person stays in the property and doesn’t pay the mortgage or rent.

In that case, the non-occupier would be entitled to recover any mortgage or rental payments made by the non-occupier, from the occupier within the finances of the breakup of the relationship/marriage.

However if the X is not paying the mortgage company it comes down onto your toe and for you to recover that in the final settlement of the finances.

You need to start looking to sell the property to avoid repossession because of their solicitors get their hands on it, they will milk it for costs. As part of the financial order you need an order for sale.

No one can be compelled to continue to own a property which they no longer wish to own and they are able to force a sale through the courts if necessary.

 

 

The remedy is to make an application to court for an order for sale under section 14 of the Trusts of Land Appointment of Trustees Act (the Act).

Anyone wishing to sell may find that a strongly worded letter from a solicitor threatening a court application and an application for costs, may focus the mind without actually having the need to get to court.

Check house insurance to see if there is legal expenses cover that would pay for the legal cost of taking the matter to court.

If I were advising anyone who has received a letter threatening an application to court under the Act and an application for legal costs, I would tell them to get the agents sign up immediately and cooperate with the sale because if they make the court application, they are likely to get it and they are likely to get costs awarded against them.

 

Once you are divorced you no longer have a matrimonial home right against the property but you still have a financial interest and as you have dependent children, and you are both under a duty to provide a home for dependent children until they are 18, you are entitled to stay in the house as it was the family home, until the youngest child reaches 18.

However as I said earlier, you would be responsible for the mortgage and the bills meanwhile.

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.

 

You may need to login again to use the rating service. Although it says "rate to finish" it doesn't close the thread and we can still exchange emails.

 

It's important that you use the rating service because that gives me credit.

 

It doesn't just give me a pat on the head! It's what gets me paid!!

 

There is also an experts incentive scheme whereby the more 5 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 points clarifying, I will still reply because the thread does not close.

 

Best wishes.

 

FES

 

 

 

 

Customer: replied 12 days ago.
That is not really helpful at all and sounds like you don’t know the law.

You have taken two separate types of law here and quoted them to me. Therefore I do not think your a family law solicitor?

I have an occupation order which means that the property cannot be sold until a further order of the court (financial order) unless myself and my X agree. As stated originally my X is trying to get the house repossessed, so as to cut me off from receiving any money. If the property is sold this renders myself and the 3 children homeless, as any money left over from the repossession will be given to my X due to there being no financial order in place.

I very much doubt a court would look at a section 14 of trust of land application for the home to be sold while there are financial remedy proceedings but that’s just my thoughts.

The part about recovering the mortgage payments by the non-occupier is possible occupation rent but it’s rarely awarded.

Financial remedy is based on need not who paid what
Expert:  F E Smith replied 11 days ago.

As you are not happy, I will opt out for another expert. Kind regards

Expert:  Peter Collins replied 11 days ago.

Hello, my name is Peter, I’ve been asked to look at this for you, thank you for your patience.

Please bear in mind as this is an email service and not live chat I may not respond immediately.

When is the next financial remedy hearing, and is the house the only asset in dispute?

Customer: replied 11 days ago.
The next hearing is on 25th November.
There are also pensions involved, which my x partners is significantly larger than mine as I had to go part time to take care of the children
Expert:  Peter Collins replied 11 days ago.

Thank you - and is this a final hearing?

Customer: replied 10 days ago.
It’s for FDR but I think they will schedule for another FDR as my ex has not answered my questionnaire, refuses to disclose assets such as pension and will not provide any up to date financial information
Expert:  Peter Collins replied 10 days ago.

My view is that as repossession is a possibility and you and the children would be without a home as a result you should push for a decision on the property at the FDR rather than let the issue be postponed - even if this not a final decision you can ask the judge to make an order for your ex to pay their share of the mortgage in the interim pending a final hearing. The delay is not on your side, obviously.

Customer: replied 10 days ago.
I asked during my occupation order and and previous hearings for the financial order for the judge to order her to pay towards the mortgage. Each time the judge has told me that they can not make an order as such if that.
Expert:  Peter Collins replied 10 days ago.

Did you do this as an application for maintenance pending suit?

Expert:  Peter Collins replied 4 hours ago.

 

Hello - did you receive my last reply?

Can I assist you further with your question?

Kind regards,

Peter