Ex refuses to sign so I can remortgage

ian1246

MWT said:

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. 

And what if the requirement to take the Ex of the mortgage "as soon as possible" or to indemnify him against any debts? 

silvercar

Helpplease2024 said:

silvercar said:

If you repaid the current mortgage, by taking a new mortgage or whatever, why wouldn’t that automatically end it - without a signature being needed?

Because he has a charge on land registry which I have been told he would need to agree to transfer it apparently but I don’t understand why?! Because I would think it would just stay on land registry anyway. 

So this all hinges on your ex signing a deed of postponement. This would put him in second place after your new mortgage. 

If he refuses to sign, then the only option I can see is a new mortgage with the existing lender. 

Going to court to force him to sign would risk him appealing on the grounds of the ages of the children. Although your youngest has a few years of study remaining, I can imagine him arguing that the intention of the original order was for a 3 or 4 year course. So showing your youngest is still in tertiary education may be sufficient on the original order, but may risk a pesky judge deciding that it is time to call a halt. Even if the judge was with you on this point, he/she may decide that forcing a deed of postponement on your ex, puts his needs behind your new mortgage for a disproportionate length of time. Eg if you took out a new 20 year mortgage. He could then do nothing if you refused him his money in a few years time.

MeteredOut

MWT said:

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 said:

MeteredOut said:

For how long can someone stay in tertiary education?

Indefinitely.

Yes, its was a bit of a rhetorical question - just wondered if the OP had noted that too. I'm no lawyer, but its the clause that immediately jumped out at me when I read the wording. The OPs ex's solicitor has let them down too.

I wonder if there's even a legal definition of tertiary education. At least it states full time, but if the OPs son did not work and signed up to an online course after finishing their current course...

BarelySentientAI

MeteredOut said:

MWT said:

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 said:

MeteredOut said:

For how long can someone stay in tertiary education?

Indefinitely.

Yes, its was a bit of a rhetorical question - just wondered if the OP had noted that too. I'm no lawyer, but its the clause that immediately jumped out at me when I read the wording. The OPs ex's solicitor has let them down too.

I wonder if there's even a legal definition of tertiary education. eg, if the OPs son started an online course, and argued they were still in education, or if they started an open university course.

I was somehow still a student at Brunel for 6 years after finishing a couple of modules from a course as CPD.  Annually renewed student card posted to me, active .ac.uk email address, offered modules to pick each term, etc.

I'd have probably been able to claim I was still in tertiary education through that period, despite not being within 200 miles of the campus.

MWT

ian1246 said:

And what if the requirement to take the Ex of the mortgage "as soon as possible" or to indemnify him against any debts? 

The requirement to indemnify is simply an ongoing obligation, it doesn't require any specific action beyond staying current with payments.

Taking the Ex off the mortgage is ironically what the Ex is currently preventing the OP from doing...

silvercar

BarelySentientAI said:

MeteredOut said:

MWT said:

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 said:

MeteredOut said:

For how long can someone stay in tertiary education?

Indefinitely.

Yes, its was a bit of a rhetorical question - just wondered if the OP had noted that too. I'm no lawyer, but its the clause that immediately jumped out at me when I read the wording. The OPs ex's solicitor has let them down too.

I wonder if there's even a legal definition of tertiary education. eg, if the OPs son started an online course, and argued they were still in education, or if they started an open university course.

I was somehow still a student at Brunel for 6 years after finishing a couple of modules from a course as CPD.  Annually renewed student card posted to me, active .ac.uk email address, offered modules to pick each term, etc.

I'd have probably been able to claim I was still in tertiary education through that period, despite not being within 200 miles of the campus.

You may have been able to claim that, I doubt a judge would accept a one hour a week flower arranging course would qualify as still being “in tertiary education”. A recent thread on the student board was started by someone who obtained a student loan in their 70s, doesn’t mean they could claim to still be in education.

Arguably, when you finish your first degree you are then out of education, even if you start another course a few months later.

DE_612183

silvercar said:

BarelySentientAI said:

MeteredOut said:

MWT said:

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 said:

MeteredOut said:

For how long can someone stay in tertiary education?

Indefinitely.

Yes, its was a bit of a rhetorical question - just wondered if the OP had noted that too. I'm no lawyer, but its the clause that immediately jumped out at me when I read the wording. The OPs ex's solicitor has let them down too.

I wonder if there's even a legal definition of tertiary education. eg, if the OPs son started an online course, and argued they were still in education, or if they started an open university course.

I was somehow still a student at Brunel for 6 years after finishing a couple of modules from a course as CPD.  Annually renewed student card posted to me, active .ac.uk email address, offered modules to pick each term, etc.

I'd have probably been able to claim I was still in tertiary education through that period, despite not being within 200 miles of the campus.

You may have been able to claim that, I doubt a judge would accept a one hour a week flower arranging course would qualify as still being “in tertiary education”. A recent thread on the student board was started by someone who obtained a student loan in their 70s, doesn’t mean they could claim to still be in education.

Arguably, when you finish your first degree you are then out of education, even if you start another course a few months later.

Depends on the definition of Tertiary Education - if you refer to a definition it's this - https://www.google.com/search?q=tertiary+education+meaning&rlz=1C1GCEA_enGB1087GB1087&oq=tertiary+education+me&gs_lcrp=EgZjaHJvbWUqDQgAEAAYgwEYsQMYgAQyDQgAEAAYgwEYsQMYgAQyBwgBEAAYgAQyBggCEEUYOTIHCAMQABiABDIHCAQQABiABDIHCAUQABiABDIHCAYQABiABDIHCAcQABiABDIHCAgQABiABDIHCAkQABiABKgCALACAA&sourceid=chrome&ie=UTF-8

Helpplease2024

ian1246 said:

MWT said:

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. 

And what if the requirement to take the Ex of the mortgage "as soon as possible" or to indemnify him against any debts? 

It wasnt an option for me to do this before now for a variety of reasons I wont get into.

Helpplease2024

silvercar said:

Helpplease2024 said:

silvercar said:

If you repaid the current mortgage, by taking a new mortgage or whatever, why wouldn’t that automatically end it - without a signature being needed?

Because he has a charge on land registry which I have been told he would need to agree to transfer it apparently but I don’t understand why?! Because I would think it would just stay on land registry anyway. 

So this all hinges on your ex signing a deed of postponement. This would put him in second place after your new mortgage. 

If he refuses to sign, then the only option I can see is a new mortgage with the existing lender. 

Going to court to force him to sign would risk him appealing on the grounds of the ages of the children. Although your youngest has a few years of study remaining, I can imagine him arguing that the intention of the original order was for a 3 or 4 year course. So showing your youngest is still in tertiary education may be sufficient on the original order, but may risk a pesky judge deciding that it is time to call a halt. Even if the judge was with you on this point, he/she may decide that forcing a deed of postponement on your ex, puts his needs behind your new mortgage for a disproportionate length of time. Eg if you took out a new 20 year mortgage. He could then do nothing if you refused him his money in a few years time.

Hes only in his 2nd year at university anyway and will possibly do masters. Hes only 20 and is still dependent financially on me to see him through university. I cant do mortgage with current lender as they need a signature too. 

Helpplease2024

MWT said:

ian1246 said:

And what if the requirement to take the Ex of the mortgage "as soon as possible" or to indemnify him against any debts? 

The requirement to indemnify is simply an ongoing obligation, it doesn't require any specific action beyond staying current with payments.

Taking the Ex off the mortgage is ironically what the Ex is currently preventing the OP from doing...

Exactly and I have never missed a payment. I am trying to adhere to the order and he is not due money yet. He is blocking the whole process. I still continue to make payments as its a roof over our heads.