second marriage when financial clean break not complete

roco2020

I've been with my long term partner nearly 10 years, we met and got together after he separated from his first wife, while they lived apart waiting two years for a no fault divorce. This divorce was instigated and completed after the required two years. The financial settlement was not looked until after the divorce absolute was completed, as my partner assumed it would be amicable, low conflict and based on the separation agreement made at the point of separating. This hasn't been the case due to her being un-cooperative and uncommunicative throughout, extensive mediation was done with no agreement so court action was taken to get a clean break order, in spring 2020.
My partners ex-wife has not fully complied with the order; it was agreed she would get a small mortgage in her own name (removing ex-husband from mortgage) in order to keep the marital/family home, transferring the ex-husband's share of the house to her new husband (she remarried before the court proceedings so relevant), in the event she didn't the house was to be sold. There has been no new mortgage and no action to sell house has been taken. Two enforcement hearings have already happened with extended deadlines given for the ex wife to complete actions required. The deadline of the latest extension is coming up and there has been no progress. I suspect there are likely issues with income & credit record that would impact a mortgage application for both her and the new husband.  
My partner and I were due to get married next summer 2023 but I feel this isnt a good idea whilst court proceedings are ongoing. I'm unsure if the clean break will be enforced - how many more enforcement hearing are likely and if there is potential for this to drag on for many more years. They share two children that live 50/50 between them, the children's time with dad is in our shared & blended home along with my children. This has caused an immense amount of stress, money and time over a long period which has impacted badly on our relationship & family members. Its had a very negative impact on my wellbeing and I'm wondering if I'm better off out of this? I'm very concerned that this isnt going to resolve well - are there any financial / legal implications I should be aware of, if I choose to continue with wedding plans?        
Thank you for reading! 

RAS

Do you own your own house? Or jointly with your partner? Any other joint finances?

roco2020

Thanks RAS, we bought a house together in 2020 when his clean break financial settlement gave him the cash funds for his share of the deposit, so we started on equal contributions. Our mortgage potential was reduced by the amount of the mortgage on the marital home that he shared with the ex. He is still named on mortgage & deeds of the that house, contrary to the clean break order. 

RAS

And do you have a deed of trust in place regarding the split of assets?

Basically, being unmarried there would be an assumption that you got 50% of the house, and that's it, unless a deed of trust states otherwise. Possibly of shared accounts as long as you were still friendly.

If you are married, there would an assumption that you'd get 50% of everything including pensions. If you have any joint children, it could be more or less depending with which parent the child resides. Although it might be a short marriage, the length of time you've lived together would be relevant.

BUT, as one of my friends put it "No-one tells you how !!!!!!!!! hard parenting is, and it doesn't get easier." He's got two young adults.

Add in the fact that some of your children will be teens/pre-teens? Nightmare.

And a blended family situation where one parent is pulling strings?

You may be concentrating your mind in one issue, when 

a) just the parenting situation you are in is very difficult
b) you really need to talk, properly, sans children, with your partner. It's not wholly his fault that his ex is a nightmare, but there it is quite an ask of both of you to co-parent step-children, and managed a blended family situation without anyone drawing blood.

roco2020

For sure, all set up in the event there is a split either before or after marriage with regards to finances. There are no shared children, debt or other credit commitments aside from the mortgage.  
Its difficult for me to work out if throwing another complexity (marriage) into the fray is going to cause anymore problems when my knowledge/understanding of divorce and the possible implications of unsuccessful clean breaks is limited. 
My aim is to minimise financial risk to me, in what is becoming an increasingly fraught situation. 
And yes - its a challenging family life without doubt. 

TBagpuss

If there is a court order in place, ven though it hasn't yet been implemented, then there shouldn't be any issue with you getting married.

If there was no final order then it's generally best to wait.

Enforcement can be tricky, however, it's about implementing an existing order - it doesn't sound as though she is seeking to appeal the original order or reopen the negotiations, (and it would be very tricky to do that) 

A court may grant amendments to thre timing of the current order but it isn't going to reopen the over all settlement (and it may be that there was provision in the order to say the house wouldn't be sold without the court's permission wheile the childnre were still minors, as that's a very common wording where the reason for the house being trnasferred is to provide a home for the childnre, so the court is in that case mostly looking at whether to give that permission and how agressively to enforce the order. 

It's unlikely that you being married, rather than being in a 10 year long cohabiting relationship, would make a significnat difference to how the court viewed the enforcement applciation. 

That said, it probably is sensible to see this as an Awful Warning and consider havng a pre-nup set up so that in the event anything went wrong with your marriage you and your fiance would both know where you stand. 

roco2020

Thank you TB - final order was sealed in 2020 so no issue there and as yet no attempt to renegotiate the settlement - just drag it out because securing the new mortgage has been problematic for the ex.
I think the ownership of the former-marital-home became an issue at settlement because of the ex-wife's new marriage; as I understood it - it wasn't allowable for my partner to remain on the mortgage and liable for it, when it housed the newly married couple. This meant the provision covering housing the children wasn't included - but does make enforcing problematic, as you say. Not knowing if/when this situation can be resolved is very difficult. 
Good to know that there's not much of a distinction to be made in the marriage / cohabiting relationship at this stage of proceedings. 
Agree about the pre-nup completely.     

tightauldgit

If you've reached the enforcement stage then an order is in place and agreed and final. So there's nothing to worry about in terms of ongoing changes to that order or impact on your finances in the future. 

The enforcement is probably going to be tricky - it really depends on the exact wording of the order and what a court is or isn't willing to do to enforce it. At the end of the day they are going to be reluctant to force a sale if it's going to cause her significant issues rehousing herself, especially if there are kids involved. All you can do is apply to the court to force the sale and hope for the best.  

One question to ask yourselves may be whether the stress and issues caused by trying to enforce the order are proportionate? Is it really creating a huge issue in your lives or is it simply a case of getting stressed and angry because she's not complying? You cannot control how other people behave but you can to some extent control how you let it impact on you.

If the sale of the house is not critical to you then I would try to take a step back from the argument and simply let the court process play out. If it is causing financial difficulties then you need to make that case clear to the court and pressure them to force the sale. 

roco2020

Thank you tight, sale of the FMH isnt in anyway critical - it was fully expected to be used to house the children. The issue here is more to do with related and ongoing stress when its clear that the other household isn't financially stable, as evidenced by issues with employment & late mortgage payments but is refusing to communicate. So its a very unfortunate mash up of circumstances that is now starting to impact here in an already complicated set-up, so I'm trying to establish if there are any obvious red flags I don't see or know about before getting married. Looks to be more of a generalised pain than a specific legal issue for me, other than pre-nup.   

pinkshoes

roco2020 said:

I've been with my long term partner nearly 10 years, we met and got together after he separated from his first wife, while they lived apart waiting two years for a no fault divorce. This divorce was instigated and completed after the required two years. The financial settlement was not looked until after the divorce absolute was completed, as my partner assumed it would be amicable, low conflict and based on the separation agreement made at the point of separating. This hasn't been the case due to her being un-cooperative and uncommunicative throughout, extensive mediation was done with no agreement so court action was taken to get a clean break order, in spring 2020.
My partners ex-wife has not fully complied with the order; it was agreed she would get a small mortgage in her own name (removing ex-husband from mortgage) in order to keep the marital/family home, transferring the ex-husband's share of the house to her new husband (she remarried before the court proceedings so relevant), in the event she didn't the house was to be sold. There has been no new mortgage and no action to sell house has been taken. Two enforcement hearings have already happened with extended deadlines given for the ex wife to complete actions required. The deadline of the latest extension is coming up and there has been no progress. I suspect there are likely issues with income & credit record that would impact a mortgage application for both her and the new husband.  
My partner and I were due to get married next summer 2023 but I feel this isnt a good idea whilst court proceedings are ongoing. I'm unsure if the clean break will be enforced - how many more enforcement hearing are likely and if there is potential for this to drag on for many more years. They share two children that live 50/50 between them, the children's time with dad is in our shared & blended home along with my children. This has caused an immense amount of stress, money and time over a long period which has impacted badly on our relationship & family members. Its had a very negative impact on my wellbeing and I'm wondering if I'm better off out of this? I'm very concerned that this isnt going to resolve well - are there any financial / legal implications I should be aware of, if I choose to continue with wedding plans?        
Thank you for reading! 

The bit highlighted in bold could be the issue. This is her home for her, her husband and the two children. If she can't get a mortgage then there is no incentive for her to cooperate, as her only option will then be to sell the house and move, and end up in rental accommodation which is often far more expensive than the mortgage.

It might be very stressful for you, but it probably is for her too.

I assume the next step of enforcement is forcing a sale of the property? Are there any other solutions that would allow her to keep the house whilst removing your husband from the mortgage and deeds?