Re-marriage trap - Court Order following Divorce help

silvercar

Proactive52 said:

Thank you for your comments, I am very upset and in Court tomorrow regarding the Lenders bogus claim for Repossession on the grounds of their major error which caused the arrears, which is taking up alot of my time, whilst caring for a severely disabled daughter and trying to work.

I will then have more time to post details of the Court Order Financial Settlement - my ex had/has no inclination to have another mortgage and said he prefers to rent and keep his name on the mortgage so that he can tabs on me - I very naively thought that getting a Divorce meant severing all ties, my solicitor said that due to children it could not be a Clean Break Settlement which is what I wanted - I raised the 2 children from our marriage from the ages of 7&5 with no financial help from my ex until the Court Order which said he had to pay for the youngest who was 18 at that time, whilst she was still in College, he paid £50 per month for 1 year.

I wanted to sever all ties as a Clean Break, (divorce was very acrimonious as he was very abusive verbally in front of the children, and had threatened to kill me on several occasions, with knives and choking me, I should of reported him to the police but was trying to keep the peace for the children) - Solicitor said couldn't be a Clean Break - I wanted house transferred to me with no claim on him for financial assistance for children or the mortgage - so that we could both move on as he had remarried.  I had equity in the property as owned it prior to the marriage which was for less than 10 years.

Given the mortgage is in joint names, he should also have been notified of the possession hearing. If the possession occurs it will be on his credit record as a black mark as he failed to keep up with repayments on a credit agreement that is in his name. 

TBagpuss

1)      Due to the Re-marriage Trap - ex re-marrying before the 2008 Court Order - can this be revoked and should it?

I am not sure what you mean by the remarriage trap. The fact that your husband has remarried before the order was made doesn't invalid the order. His remarriage would have meant that he was not able to start the court proess for a financial settlement but doesn't alter the options available to the court when making a settlement.

If you are referring to the terms that he is entitled to his share of the house value / equity if you remarry or cohabit this is extrmeely common - it's gernelly assumed that f you are in a new long term relationship that (a) it's unreasonable for your ex spouse to be effectively providing housing for your new partner and (b) the expectation is that you and a new partner are likely to be able to remortgage jointly to buy out his interest 

2)     If so what would be the implications of this with regard to 75%/25% split of the property?  Would he still be entitled and would I still have to pay him this even though the property was transferred to me and he has paid no mortgage payments since 1997?

You need to check what the order says. However, the order sounds like a final order so you can't change the 75/25 split.
If the order provided for him to have 25% of th equity then it would be in your interests to pay him out as soon as you could, rathr than paying down the mortgage and incresing the equity. If your current lender wasn't willing to let you take out a mortgage in your sole name, then look at other lenders (or even selling the hosue and buying a different one) 

IT's pretty standard that you don't expect someone who is not living in the houseto pay the mortage, so unless the order said he was supposed to be contribuuting to the mortgag ethen there's no reason why his not doing so would make any differnece to his entitlement 

3)     My solicitor told me at the time that provided I didn't re-marry or Cohabit myself I would not have to pay my ex or sell the property but if I chose to sell and move, the entire equity would stay with me in order to purchase another property - is this correct?  I am single and would like to move so that I will no longer have a mortgage to pay as I am now 62, but worried if I sell I would have to pay my ex his 25% - even though he has paid nothing towards the property, mortgage or following our divorce, paid nothing for his 2 children who I raised and provided for by myself as a single parent? 

This would depend entirely on what the order says - it may be that the order provides that the triggers for him to get his share are only if you remarry, cohabit or move . It's more common for there also to be an end date (this can be when the younbgest child leaves shcool, for instnace, where there are minor children at the time of the divorce) if you were ill and unable to work at the time the order was made this may have been why there wasn't a long stop date. Normally if you sell that would trigger payment to him but in some cases an order can provide for you to move and to hold the new property on the same terms.



4)     At Court in 2008 my ex laughed at me, saying he doesn't have to pay for his children or the mortgage and I will have to pay for everything whilst his 25% increases along with the equity in the property?

Payment for childnre is via the CMS (Previously CSA) so is separate from any finacial settlement between you and him. I assume that your childnre are now all adults but there would have been nothing to stop you applying for child maintenace through the CSA while they were still minors. You cannot however make a backdated claim.

In temrs of the mortgage, it is perfectly normal for the person living in the house to be paying it -one way of thinking of it is that you were paying 75% of the mortgage as you own 75% of the house, and 25% as 'rent' to live in the 25% of the houe that he is still entitled to. 

Other

Some orders work on a % basis so his interest is bas on the equity as it was at the time of the order, so it might be 25% of the (then ) equity expressed as a % of the gross alue of the house - of you wrre to move then it would be sensible to look at working out any charge over your new property in that way so that he did not benefit from any further payments you made to reduce the capital owing on any new mortgage.

The incorrect arreras complicate things but if you were paying him out now then on the faceof it it is likely that his 25% would be calcualted based on the actual redemption figure for the morgage , unless the order provides that you aresolely repsonsble for any arrears. 

It sounds as though a clean break wasn't practical when you had the order due to the childrne and (presumably) you being unable to buy him out at that time. However, there would be nothing to stop you now selling the house and paying him off, remortgaging with a differnet lender (if you can get a mortgage) and paying him off, and presumably if the house was large enough for you and the children, if you did sell, your 75% of the equity might well be enough for you to buy something smaller either mortgage-free, or with a much smaller mortgage, depending what you can afford in your own right. 

If your 75% would not be enough to buy a smaller property mortgge free then you could look into lifetime mortgages (Also known as equity release) which work by lending you the money but instead of paying monthly, the repayments are rolled up and paid off when the house is sold, when you die or if the hosue is sold becuase you need to go into care. It's possible to get a mortgage of this kind on an exisiting property or when moving, although of course you would need to take advisce about the pros and cons and whether it was in your interests. 
 

k3lvc

@Proactive52 any update on this ?

Proactive52

Thank you TBagpuss for your advice, very much appreciated, sorry for delay I have been very busy with work and doing Witness Defence Statements, and full-time carer for my daughter following Long Covid last year, she is now disabled, reliant on me for everything, in constant chronic pain with Fibromyalgia, ME/CFS and PoTS -  at the same time I am also in Court with my Lender (my ex has to attend as well as he is still named on the mortgage as Lender, Birmingham Midshires has refused to move him for 22yrs since our Divorce in 2000!  3rd Time they have taken me to Court for the same thing, following very acrimonious divorce, I have now had to be in the same court with him 3 times, the only time I've seen him in the 22yrs) 

Court case is on another Forum here, Lender is trying to Repossess on the grounds of arrears on the account due to a massive error they made between 2016 and 2018 wrongfully calculating CMI, and tried to say I owned approx £32,000 in CMI!! They were supposed to reimburse the entire amount back to the account, but didn't, by mistake they reimbursed approx £24,000 leaving the account in 'Bogus Arrears' of approx £9,500!!

I have sent yet another complaint to the Lender and their Solicitor - their complaints department are rubbish, last time they replied saying they can see no error - they where looking at 2015, completely the wrong time frame!! 

My ex in Court last week agreed to sign for the complaint I raised with the FOS (previously he refused, Judge told him he needed to sign as is still joint on mortgage), so that is now progressing and I also raised the complaint with the FCA who are also investigating.  All of which I need to include in yet another bundle with another Witness Statement to the Court on Monday next week.

I am exhausted dealing with this, so stressed, upset and depressed by all of this, I just want to move on, sell my house, I need to move as my daughter struggles now with stairs - I have been fighting with them for 6yrs to sort it - 2 previous Judges threw their claims out of court based on the info I had produced - this time the Judge (who clearly doesn't like people who have no re-course but to defend themselves, I have tried to see if I could get a Pro-Bono Solicitor to no avail)  has asked for multiple bundles with massive amounts of paperwork - even though I have quite clearly shown exactly when the error by the Lender occurred and what they didn't do to put the account back as it should of been.

I am at my wits end worrying the Judge will rule for repossession even tho I have clearly shown I have not been liable for arrears.

Apologies for my rant as it is a separate issue really to my post here regarding the Court Order and Divorce - but both have a knock on effect.  Sorry