Divorce clause query

teresag

Please help!! There's a clause in my divorce that says I have to pay the mortgage even though it's joint with my ex. I really need to go bankrupt but can't find out if I can with this clause. My solicitor doesn't know as he deals with family law and a financial solicitor doesn't know as he doesn't deal with the family side of things. I can't afford 2 solicitors to find out and need help.

fermi

The Insolvency Act 1986 excludes debts (and possibly obligations?) that arise from "family proceedings" from being included and written off in a bankruptcy?

So I suppose the questions are:

(a) does the order here fall under the technical definition of "family proceedings"?

(b) depending on whether they do or don't, would the OR/trustee etc allow you to continue paying this, and how would any equity/interest in the property be dealt with.

On (a) I would imagine a solicitor that deals with family/matrimonial law should should know what is covered under the technical definition of "family proceeding"? Would not be much cop if they did not?

On (b) that is much harder... Hopefully others can comment more?

teresag

The house is in negative equity so I can't sell it. I'm not behind with the mortgage as my ex would take me to court again for non payment but the kids are going without and we're really struggling so I can't afford a solicitor.

fermi

Well, I know that the OR has to allow you to continue making some types of maintenance payments. I'm just not sure whether yours fall under that.

National Debtline etc may have an idea, or at least find out?

Try contacting the official: http://www.bis.gov.uk/insolvency/contact-us

0845 602 9848 or email by : [EMAIL="Insolvency.EnquiryLine@insolvency.gsi.gov.uk"]Insolvency.EnquiryLine
@insolvency.gsi.gov.uk[/EMAIL]

While they can't give "advice" as such, they may be able to in general terms tell you how the OR/IS would likely treat this sort of issue.

alastairq

Are not mortgage payments [however arrived at?] secured debts, therefore outside the remit of BR?

I suggest that the OR must [under the 'family proceedings' issue,] accept that mortgage payments must continue?

I don't think another Court can 'prevent' a BR petition being granted...[however....the issue would be, what debts would be 'included?']

Of course, if at some future date, the EX decided the house should be sold.......and there is negative equity, the mortgagor would not be able to pursue the OP for this debt [now unsecured?}...

alastairq

ON re-reading the OP's post, I am of the understanding that the OP lives in the house, and pays the mortgage. Is that correct?

Or, is the EX living in the house, but the OP lives elsewhere with the kids?

teresag

I live in the house with the children and I pay the mortgage.

WestonDave

Logic would suggest that the mortgage payments are related to family proceedings (divorce is referred to as a "family" matter in legal circles), so whilst they probably don't preclude you going bankrupt to clear other debts, going bankrupt wouldn't on that basis allow you to escape from paying the mortgage.

It sounds like its not an issue with other debts plus the mortgage where bankruptcy might at least remove the other debts and make things easier, but its the mortgage itself which is the problem. That being the case I would have thought the way forward would be via the family solicitor and an application to the court to vary the divorce order (presuming there is at least a consent order) to reduce the contribution to the mortgage.

silvercar

teresag wrote: »

Please help!! There's a clause in my divorce that says I have to pay the mortgage even though it's joint with my ex. I really need to go bankrupt but can't find out if I can with this clause. My solicitor doesn't know as he deals with family law and a financial solicitor doesn't know as he doesn't deal with the family side of things. I can't afford 2 solicitors to find out and need help.

Mortgages are outside bankruptcy.

Really not enough information here, but if you are in the home and receiving maintenance from your ex, that maintenance is (partly) to provide a home for your children. So this clause ensures that the home is not repossessed.

So your question is really whether the OR has the power to not allow you to retain sufficient money to pay the mortgage ie can the OR restrict your income to an extent that you are forced to breach the clause?

If it came to the crunch, you would have to refuse to agree the IPA - if one was set - and go back to the judge and ask for a specific ruling on whether that amount should be allowed in your expenditure. At least then, if the bankruptcy court ruled against, you could go back to the family court and say that the bankruptcy court ruled that you couldn't have enough money to pay the mortgage.

I'm not sure which court has supremacy.

fermi

alastairq wrote: »

Are not mortgage payments [however arrived at?] secured debts, therefore outside the remit of BR?

I wasn't referring to the to the actual mortgage or payment on it. Not in the first instance anyway.

Here there is a separate obligation to make payments made under an order of the court.

You have to separate out the two issues-

- Obligation to pay under order of the court - that you can't just stop paying.
- Contractual duty to pay mortgage if you are on it - that you stop paying if you really want, and it's then up to the bank to repossess or whatever.

i.e. the "obligation" in question here is not the mortgage debt, but the court order. They are seperate.

Given that for most ordinary circumstances an obligation on such a court order would be nullified by a bankruptcy, the question is would is would this one be? And how would the OR treat any continued payment in the case that is it or isn't?

I would guess that it falls under the remit of "family proceedings", or at the very least be treated by the OR/trustee in the same way if it were if not.

But that is only a guess......

fiveyearplan

Are you wanting to keep your house and just wanting to know if you can go bankrupt? If so, yes, you can go bankrupt and continue paying your mortgage providing your monthly mortgage payments aren't too onerous.