Ex refuses to sign so I can remortgage

Hoenir

MWT said:

BarelySentientAI said:

Unfortunately, I don't know of any way to compel him to sign.

I know there will be views that favour other routes and actions that could have released the Ex earlier, but I'd still be surprised at this point if a count didn't side with the OP to the extent that the Ex should not be able to block their removal from the current mortgage and permit the remortgage as long as it doesn't reduce the equity in the process.

The children are now independent adults. The Court will no longer step in as their Guardian and act to both protect their interests and welfare. Which was the purpose of the original order. 

Helpplease2024

MWT said:

Helpplease2024 said:

Exactly it will only reduce his equity if he doesn’t sign and it gets repossessed. Im trying to get a mortgage for now to stop that then remortgage to buy him out in a few years. 

I know this isn't particularly helpful, but no, that wouldn't 'reduce his equity' as you have undertaken to indemnify him and so it would leave you owing him the money anyway...

That order really wasn't well written...

The way the order was framed, the expectation was that you would simply repay the mortgage in full at the point it reached term, which you did not, or that you would sell and move somewhere else and transfer the liability for his equity to the new property.

It did not envisage you remortgaging the existing property.

That is not all that was wrong, but it is enough to leave you in the current situation.

Yes exactly. Difficult situation 😟

MWT

Hoenir said:

MWT said:

BarelySentientAI said:

Unfortunately, I don't know of any way to compel him to sign.

I know there will be views that favour other routes and actions that could have released the Ex earlier, but I'd still be surprised at this point if a count didn't side with the OP to the extent that the Ex should not be able to block their removal from the current mortgage and permit the remortgage as long as it doesn't reduce the equity in the process.

The children are now independent adults. The Court will no longer step in as their Guardian and act to both protect their interests and welfare. Which was the purpose of the original order. 

I don't think it is quite that simple as the original order clearly did envisage protection through to the end of tertiary education which has not yet been reached, and did require the OP to remove the Ex from the mortgage which is now being prevented by the Ex refusing to sign the paperwork required to release him from the mortgage and replace that with a new mortgage.

The order did envisage the need to replace the existing mortgage when changing property, it just didn't include any requirement for the Ex to execute the documents necessary.

I don't think it would be too hard to show that the current behaviour of the Ex is not consistent with the intent of the order, but that is of course subject to getting proper legal advice.

The weakness in the argument is the one I've already highlighted, the order did not envisage staying in the property and not clearing the mortgage at the end of the term and then needing to remortgage...

ian1246

MWT said:

Hoenir said:

MWT said:

BarelySentientAI said:

Unfortunately, I don't know of any way to compel him to sign.

I know there will be views that favour other routes and actions that could have released the Ex earlier, but I'd still be surprised at this point if a count didn't side with the OP to the extent that the Ex should not be able to block their removal from the current mortgage and permit the remortgage as long as it doesn't reduce the equity in the process.

The children are now independent adults. The Court will no longer step in as their Guardian and act to both protect their interests and welfare. Which was the purpose of the original order. 

I don't think it is quite that simple as the original order clearly did envisage protection through to the end of tertiary education which has not yet been reached, and did require the OP to remove the Ex from the mortgage which is now being prevented by the Ex refusing to sign the paperwork required to release him from the mortgage and replace that with a new mortgage.

The order did envisage the need to replace the existing mortgage when changing property, it just didn't include any requirement for the Ex to execute the documents necessary.

I don't think it would be too hard to show that the current behaviour of the Ex is not consistent with the intent of the order, but that is of course subject to getting proper legal advice.

The weakness in the argument is the one I've already highlighted, the order did not envisage staying in the property and not clearing the mortgage at the end of the term and then needing to remortgage...

That's the problem. The order clearly placed a number of positive obligations on the OP, all of which she has failed to implement in 21 years. Had she complied with the order, the OP would have remortgaged 21 years ago and would be approaching the repayment period, thereby ensuring all remaining debts have been paid and the OP has satisfied her positive obligations to indemnify the ex's share of the property.

Instead? The OP has completely disregarded the conditions of the order she doesn't agree with/which are inconvenient for her, putting inplace no means of repayment and leaving the Ex liable for her debts for the whole term of the mortgage.

She is now putting him in a position where his 30% share on the property should by now be almost completely secure (mortgage completely paid off) - yet instead he's been asked to sign a document which seconds his share of the property to a *new* mortgage  - a new mortgage whuch had the OP complied with the order, would not be needed.

Keep in mind - 21 years later, she still owes 100% of the mortgage.

The Ex's legal advice no doubt will illustrate the above points to the court and the OP will have difficult questions to answer. It will be for a judge to decide whether it is proportionate or fair to extend the Ex's period of exposure to his share of the property being lost, in the event the OP continues her 21 year track record of not paying her debts (when the court order places a positive obligations on her to do so).

I suspect if it gets to court the Ex's legal advice will argue the simplest and most fair solution will be the sale of the home, Ex getting his share and thr OP getting a new mortgage - after all, the original order has NOT been complied with.

Hoenir

MWT said:

Hoenir said:

MWT said:

BarelySentientAI said:

Unfortunately, I don't know of any way to compel him to sign.

I know there will be views that favour other routes and actions that could have released the Ex earlier, but I'd still be surprised at this point if a count didn't side with the OP to the extent that the Ex should not be able to block their removal from the current mortgage and permit the remortgage as long as it doesn't reduce the equity in the process.

The children are now independent adults. The Court will no longer step in as their Guardian and act to both protect their interests and welfare. Which was the purpose of the original order. 

I don't think it is quite that simple as the original order clearly did envisage protection through to the end of tertiary education which has not yet been reached, and did require the OP to remove the Ex from the mortgage which is now being prevented by the Ex refusing to sign the paperwork required to release him from the mortgage and replace that with a new mortgage.

Merely expressing a different perspective. In that the "adults" are now old enough to adapt to a change in circumstances. Whereas the purpose of the order originally was to protect them and provide a secure living arrangement. 

RAS

Helpplease2024 said:

He wanted to cash in our policy to cover mortgage not me. 

So originally you jointly had some sort of policy which was intended to accrue sufficient to pay off the mortgage at the end of the term?

When was that cashed in? What happened to that money?

I can understand that you might not have wanted to pay off additional capital against the mortgage but you've not set up any other vehicle to accrue the necessary capital to repay the mortgage, or even enough capital to pay off the ex?

MWT

ian1246 said:

That's the problem. The order clearly placed a number of positive obligations on the OP, all of which she has failed to implement in 21 years. Had she complied with the order, the OP would have remortgaged 21 years ago and would be approaching the repayment period, thereby ensuring all remaining debts have been paid and the OP has satisfied her positive obligations to indemnify the ex's share of the property.

Instead? The OP has completely disregarded the conditions of the order she doesn't agree with/which are inconvenient for her, putting inplace no means of repayment and leaving the Ex liable for her debts for the whole term of the mortgage.

You are overstating the 'obligations'...

The sale of the property was deferred until the later of the events listed, the last of which has not yet been reached.

She doesn't appear to have ignored any conditions so far, as there was literally no obligation placed on her to sell the property before the final event and certainly no obligation to buy out her Ex, just the option to do so if she wished.

She still has the right even now to sell the current property and purchase something else, transferring the Ex's equity interest to that new property.

Her defence to not having put in place a repayment vehicle is simple, she will sell the property as the repayment vehicle so nothing else was required.

The main flaw in the order is that there is no compulsion on her Ex to execute the documents necessary to preserve her right not to sell before the last of the listed trigger events.

Additionally the situation where the current mortgage reached term before the last trigger event should have been foreseen and specifically included as the right to remortgage.

The Ex has known for a very long time that there was no obligation to sell before the final event of deferral and equally that there was no obligation placed on the OP to reduce the size of the mortgage before the eventual deferred sale occurred. 

MeteredOut

For how long can someone stay in tertiary education?

MWT

MeteredOut said:

For how long can someone stay in tertiary education?

It is another example of a poor use of language in this order as it doesn't seem to have a precise definition, so could extend well beyond the usual 3 year university course to include post-graduate studies or even a doctorate for example.

BarelySentientAI

MeteredOut said:

For how long can someone stay in tertiary education?

Indefinitely.