Divorced but partner with child wont sell house

kingstreet

itsatoughone123 said:

We would like to get a mortgage but because i am on the mortgage of the house i cannot apply for another mortgage

Please clarify your source for this assertion. I can think of several lenders who would tax your affordability for the new mortgage with the cost of the current one; but AFAIK only Coventry BS has a major thing about more than one residential mortgage.

Section62

WIAWSNB said:

One step at a time. First, as said before, is mediation. https://www.familymediationcouncil.org.uk/find-local-mediator/

If she fails to agree to this, it should count against her. If she does agree to it, then your more-than-equitable position will - again - count against her if she remains unreasonable in front of a mediator. (But have clear in your head what level of financial split is acceptable to you (and your new partner); don't get swayed too far during the process!)

Let's hope the next step isn't required. 

You have to look through the tears. You have both moved on, you both have partners (regardless of whether he's moved in with her), and you are focused on keeping things amicable, mainly for the sake of your daughter, but for all reasons of civility; you hold a good set of mediating cards.

You need to start this process going. Mediation can be very effective.

That isn't how it works in divorce.

Unless exempt, the applicant has to attend a MIAM.  A MIAM isn't mediation, it is a conversation about how mediation works and whether it might be suitable.  The other party should also attend a MIAM (not necessarily the same one), or at least be prepared to explain to a judge why they didn't.

Mediation is a non-judgemental process, and confidential.  The mediator doesn't judge.  They would complete the relevant section of Form A following the MIAM to give basic neutral facts, but absolutely no comment on whether the parties are being unreasonable.

As much as the OP is getting advice to 'strap on a pair', his wife may well be getting advice to 'play the victim'.  She only needs to tell the mediator that mediation is unlikely to work because she can't see a solution where she can house herself and the child other than with the current arrangement, and (for example) that the stress of the situation is making her ill/depressed/unable to work and her obligation with regard to mediation is likely to be fulfilled.  A decent divorce solicitor would likely play up the pressure the OP is placing on her to sell the property without regard to where his child will live (not my view, just the way the 'game' gets played.)

The outcome of legal processes are always difficult to predict, but the odds are a judge would attach little weight to a wife being unwilling to go through mediation with a husband applicant who is presented (by the wife) as a 'bully'.  The general rule in divorce is each party pays their own costs.  In theory failure to engage in ADR might result in a costs award against the refuser, but there is typically a high bar set in divorce/family cases because the system recognises the extreme stress/emotions that these cases can involve and that people don't always act rationally when it is their home/child involved.

Moreover, mediation is intended to bring people together towards a resolution of a dispute, and requires both parties to enter into it in good faith.  Going into mediation with the intent to gather 'evidence' of the other party's unreasonableness is an abuse of the process - and a good mediator would spot this a mile off.

Ultimately, whether the OP's position is "equitable" is up to a judge to decide.  Judges are difficult to predict, and make hard decisions without taking into account vox populi.  This is why I said in my previous post that the OP needs to 'be careful of acting on advice from friends, family and people on the internet' (and I include myself in that).  The needs of the child will always come first.

Albermarle

That isn't how it works in divorce.

Unless exempt, the applicant has to attend a MIAM.  A MIAM isn't mediation, it is a conversation about how mediation works and whether it might be suitable.  The other party should also attend a MIAM (not necessarily the same one), or at least be prepared to explain to a judge why they didn't.

Presumably normally these MIAM sessions would be during divorce proceedings, so before the final divorce?
So as the OP, and ex, are already divorced for some time, would they still be expected to attend a MIAM, follow the usual procedures etc ? Or could they just arrange a mediator themselves.

Section62

Albermarle said:

That isn't how it works in divorce.

Unless exempt, the applicant has to attend a MIAM.  A MIAM isn't mediation, it is a conversation about how mediation works and whether it might be suitable.  The other party should also attend a MIAM (not necessarily the same one), or at least be prepared to explain to a judge why they didn't.

Presumably normally these MIAM sessions would be during divorce proceedings, so before the final divorce?
So as the OP, and ex, are already divorced for some time, would they still be expected to attend a MIAM, follow the usual procedures etc ? Or could they just arrange a mediator themselves.

It is the application for financial remedy (Form A) which triggers the requirement to attend a MIAM (or other ADR).  One of the exemptions (IIRC) is if you've attended a MIAM on the same issue within the last 4 months.  So it may be during divorce proceedings the ADR requirement has already been met, but after 4 months the requirement is refreshed.

itsatoughone123

Thanks for the messages everyone. I shall be speaking to my solicitor on Monday and also a local mediation centre. 

All I want on the outcome is to not be tied into a mortgage as I want to get my own one and have some money for a deposit. I think offering a majority share of the house is not unreasonable. 

ian1246

Hoenir said:

elsien said:

LoopyLoops said:

What was agreed in the divorce settlement?  I thought they usually covered of assets?  I know judges have usually stated age of the youngest child reaches x age the house can be sold.  Anytime prior it has to be both parties agreeing.  But I’m not an expert! 

Also where will your daughter and ex wife live if your ex cannot get a mortgage?  Private renting is expensive and won’t give your daughter much security in that she can end up having to move many times.  Council won’t house them as they will be seen as voluntarily homeless if your ex wife agrees to sell

Not really the case any more, as a rule, but still a common misconception. Divorce financial settlements have to take into account the needs of all parties, not simply their preferences. If the non/resident person needs the house sold in order to adequately house themselves, that is what has to happen, even if it means the children having to move to a different smaller property. .

The issue is normally the ability to obtain an adequate mortgage. Smaller properties are relatively still expensive. 

If there is £200,000 equity in the property, I would suggest this is not the case. The ex absolutely would be expected to show flexibility - whether that be a smaller mortgage on a 100% owned house or just buying a share of a property outright in a shared ownership.

Ex is being very unreasonable - Op, before you force the issue start documenting & evidencing all your child contact for a period of time. That way if the ex weaponises your access to the children in retaliation, you'll be able to demonstrate the status quo at court & demonstrate the parental alienation.

Herzlos

itsatoughone123 said:

I have a small pension of around 30k, i cannot get a mortgage without selling the property. A little in savings but only around 10k. But i also have credit card debt because of all this. I offered her more than 50% of the property settlement which would give her significantly more than me but it was just dismissed.

If you're struggling to maintain the payments then you can always point out to her that you can't afford to keep paying the mortgage so if she doesn't agree to sell you'll just need to stop paying and let the house get reposessed. It won't mess up your credit much worse than being attached to a mortgage you can't afford or get out of. Sure you'd both lose a fortune in bank/reposession fees but it might let her see what the alternative are. 

Whether you follow through on it is up to you, though you're better going to slower and legal route about the splitting of assets. 

You talk about there being £200k equity in the house, and the mortgage being out of her reach alone, but is there scope for her either being able to buy something outright with the equity or at least use it as a deposit to make it affordable for her? I've no idea what the numbers are here or how big the house is, but assuming something like a £300k 3-bed, could she afford something like a £200k 2-bed?

Section62

ian1246 said:

Hoenir said:

elsien said:

The issue is normally the ability to obtain an adequate mortgage. Smaller properties are relatively still expensive. 

If there is £200,000 equity in the property, I would suggest this is not the case. The ex absolutely would be expected to show flexibility - whether that be a smaller mortgage on a 100% owned house or just buying a share of a property outright in a shared ownership.

The ex is a single parent caring for a 4 year old child.  Their ability to earn is limited by their caring responsibilities, even when the child goes to school she still either has to work part-time, or else pay for childcare.  On a part-time income the outgoings for herself and a child are likely to cause her affordability issues, even with a decent deposit.

The ex would only be expected to show flexibility if there is a viable alternative to her staying in the property with the child.

ian1246 said:

Ex is being very unreasonable - Op, before you force the issue start documenting & evidencing all your child contact for a period of time. That way if the ex weaponises your access to the children in retaliation, you'll be able to demonstrate the status quo at court & demonstrate the parental alienation.

That is for a judge to decide - what you, I, or anyone else on the forum thinks is irrelevant.  The judge will put the needs of the child first, and that primarily means having a decent and stable home to live in with at least one parent.  If there isn't the equity to provide two owned homes then the judge gets to decide what is the next best alternative.  That may be the ex gets to live in the house until the child is no longer a child.

ian1246

Section62 said:

ian1246 said:

Hoenir said:

elsien said:

The issue is normally the ability to obtain an adequate mortgage. Smaller properties are relatively still expensive. 

If there is £200,000 equity in the property, I would suggest this is not the case. The ex absolutely would be expected to show flexibility - whether that be a smaller mortgage on a 100% owned house or just buying a share of a property outright in a shared ownership.

The ex is a single parent caring for a 4 year old child.  Their ability to earn is limited by their caring responsibilities, even when the child goes to school she still either has to work part-time, or else pay for childcare.  On a part-time income the outgoings for herself and a child are likely to cause her affordability issues, even with a decent deposit.

The ex would only be expected to show flexibility if there is a viable alternative to her staying in the property with the child.

ian1246 said:

Ex is being very unreasonable - Op, before you force the issue start documenting & evidencing all your child contact for a period of time. That way if the ex weaponises your access to the children in retaliation, you'll be able to demonstrate the status quo at court & demonstrate the parental alienation.

That is for a judge to decide - what you, I, or anyone else on the forum thinks is irrelevant.  The judge will put the needs of the child first, and that primarily means having a decent and stable home to live in with at least one parent.  If there isn't the equity to provide two owned homes then the judge gets to decide what is the next best alternative.  That may be the ex gets to live in the house until the child is no longer a child.

There is a presumption in law of a clean break - the sole exception to depart from that is based on necessity. There is £200,000 of equity in the property - that is a significant sum of money to meet the needs of both parties- even if its as lopsided as the ex getting £150,000 of it whilst the OP gets £50,000 of it, due to differences in earning potential.

Your also confusing "housing needs" with "owned home". A rented home is perfectly capable of meeting a child's housing needs also.

I'd also remind you that there are currently 21hours of free childcare a week (if over 52 weeks a year. 30hours a week term-time only). There is the governments tax-free childcare scheme which reduces costs by 20% for the extra hours - and if the ex's earnings are sufficiently minimal, there is Universal Credit which covers 85% of childcare costs. And thats before you factor in any of the times the OP has the child which would also increase the Ex's ability to maximise her earnings.

Playing the childcare card in the modern age absolutely does not work - there is a requirement in law that all parties maximise their earning potential. The Op's solicitor will argue similarly. A judge disregarding the presumption of a clean break, expecting the OP to go into financial ruin and continue subsidising the ex for the next 14 years whilst being unable to meet HIS housing needs (lets not forget his requirement to have a property his children can stay at) when there are options (£200,000!!!) on the table for the ex, would be extraordinary in the modern age.

Especially as the judge will be obligated to consider the impact of the OP remaining tied to the mortgage on his borrowing capacity to meet his own housing needs, or the impact that will have on the Op's ability to meet the financial checks required to rent a sufficiently sized property - his housing needs are just as important as the ex's in terms of minimal space (2 bedrooms), given the law expressly expects a child to have a relationship with BOTH parents (the child not having a bedroom at 1 parents house = a huge barrier to that. That is what the OP's solicitor will no doubt argue).

And for the record - my son is 4 years old and I'm his main parent (60/40 split) - i work full time hours in the emergency services (thankfully with flexible working). Working full time absolutely can be done if your willing to do so - but then again, i've never viewed my son as a negotiating chip for a financial settlement, or as a means to financially exploit or financially abuse my ex (i haven't claimed the child benefit and I don't ask for child maintainance, even though i could, since if I did it will likely be ruinous for the ex and inturn impact my son's time & experience with his mother).

Regardless, there is no getting away from the £200,000 equity in the property - £150,000 going to the ex would cover any realistic purchase of a shared-ownership property, meeting her / the child's housing needs. The remaining rent on the part she doesn't owned can be claimed back on universal credit.

housebuyer143

Herzlos said:

itsatoughone123 said:

I have a small pension of around 30k, i cannot get a mortgage without selling the property. A little in savings but only around 10k. But i also have credit card debt because of all this. I offered her more than 50% of the property settlement which would give her significantly more than me but it was just dismissed.

If you're struggling to maintain the payments then you can always point out to her that you can't afford to keep paying the mortgage so if she doesn't agree to sell you'll just need to stop paying and let the house get reposessed. It won't mess up your credit much worse than being attached to a mortgage you can't afford or get out of. Sure you'd both lose a fortune in bank/reposession fees but it might let her see what the alternative are. 

Whether you follow through on it is up to you, though you're better going to slower and legal route about the splitting of assets. 

You talk about there being £200k equity in the house, and the mortgage being out of her reach alone, but is there scope for her either being able to buy something outright with the equity or at least use it as a deposit to make it affordable for her? I've no idea what the numbers are here or how big the house is, but assuming something like a £300k 3-bed, could she afford something like a £200k 2-bed?

I don't think having the property repossessed is in any way a good idea. The OP wants to buy another house - no way he gets a mortgage after he's been repossessed...