Can ex-wife re-mortgage with additional borrowing while my names still on mortgage?

kingstreet

getmore4less wrote: »

get your charge in and the transfer BEFORE the re mortgage.

If he does that, he'll then be required to provide a deed of postponement for the benefit of the lender so it gets the first charge anyway?

JimmyTheWig

Is the 40% equity at the time of the trigger or at the time of the split?
Who has been paying the mortgage since the split?

edmond

40% equity at the time of the trigger, as we split 3 years ago.
Ex has been paying the mortgage for the last three years.

getmore4less

kingstreet wrote: »

If he does that, he'll then be required to provide a deed of postponement for the benefit of the lender so it gets the first charge anyway?

SO he is stuffed whatever happens.

He gets his charge she extends the debt and !!!!!! the equity has gone.

it needs to be 40% of the house not free equity.

even if it is the problem is if she borrows more and spends it then the only recourse is to sue the wife with no money..


he needs a charge that stops extra borrowing.

JimmyTheWig

edmond wrote: »

40% equity at the time of the trigger, as we split 3 years ago.

Oh I see.
So she extends the mortgage, thus reducing the equity.
Then there's a trigger and you get 40% of not much.

If that's what she's planning (are you on good terms with her?) then I doubt that there's much that you can do.

Ex has been paying the mortgage for the last three years.

In which case I would have thought that it would have been fairest to make it 40% of the equity at the time of the split.
If she's paying the mortgage, she's reducing the equity each month. Seems a little harsh on her to then have to give 40% of that to you.

edmond

That's correct I could be in a position of having 40% of nothing.
We are on good terms but things change.
When I moved out we had roughly 100k equity in the house with a mortgage of around 80k.
I did try to get my 40% at the time of the split, however if that had of happened then she would have been forced to move out and downsize. As we have two children I did not want to put them through that.

kingstreet

The mortgage lender gets a first charge.

You get a second charge.

However, the lender's first charge may permit it to make further advances within the first charge, which may mean it inadvertently allows borrowing into your equity.

AFAIK it has no obligation to inform the second charge holder of increased borrowing within the existing charge, although you may want to seek confirmation of that.

edmond

So is there anyway of protecting my 40%?

kingstreet

I suggest legal advice. It's getting a bit out of the scope of my experience now.

JimmyTheWig

edmond wrote: »

That's correct I could be in a position of having 40% of nothing.

edmond wrote: »

So is there anyway of protecting my 40%?

I think there's two different issues here.

1. Your Ex remortgages before a trigger, slashing the equity and hence your 40%.
2. There is a trigger and your 40% becomes due. How do you ensure you get it as even if you have a second charge on the property she can remortgage and result in less equity in the house than your second charge.

Which of these (or both?) are you concerned about?

I'm not sure that there is anything you can do about number 2. Were there any plans in the agreement as to how (and how quickly?) you would get your 40%? If not, there is a chance you would just end up with her owing you this money with no means to repay you.

In terms of number 1 I would come to an arrangement about it now, while you are on good terms.
Presumably there is more equity now than when you split? And in that time you say that you haven't been contributing to the mortgage?
I know this isn't in your interest, but do you agree that it isn't really fair for you to get 40% of this increased equity? [And, more importantly for you, it would be unfair if she remortgaged and left you with 40% of a small equity.]
So why not say to her that you've been thinking and have realised that it's unfair for you to get 40% of the increased equity. Suggest that you change the plan to you getting 40% of the equity at the time of the split, but still keep it that the money only becomes due when there is a trigger.
You should then be able to get a second charge on the property right away as there will be a concrete amount to make that charge.
Obviously that still leaves the problem of how to get that money (issue number 2).


Incidentally, how old is the eldest child involved?
And does your Ex have a new partner?
I.e. how close do you think you are to a trigger?