Getting worried about legal situation

welf_man

Okay, this is long and complex but I'll try and be clear!

- Bought house jointly with ex while still married - mortgage £140,000 also in joint names

- Ex left permanent job to become computer contractor at around £70,000 gross p.a.

- I ran up significant debt, mainly supporting household costs due to ex's behaviour (not as bad as it sounds!)

- Ex found out about debt and we split because of it, but he accepted partial responsibility and arranged to extend mortgage to pay off about two-thirds

- Mortgage then £160,000, equity min. £40,000 at that time

- I moved out 6 months later, ex took over mortgage payments but mortgage and house remained in joint names

- Ex's new partner and child moved in a year ago so they wanted to keep the house rather than sell. I believe her income is relatively low and she doesn't appear to have been contributing at all to the mortgage payments

- Started divorce/settlement proceedings last summer when equity about £60,000. Agreed he would buy me out on basis of lump sum payment to me of half urrent equity less £10,000 to cover half loss of equity due to mortgage extension

- Incredibly inefficient solicitor took 9 months to get settlement through Court during which time ex's contract finished and he has yet to find new one. I have received the settlement amount as his mum lent it to him.

My concerns are that my name is still on the mortgage and I don't know whether the bank was ever told I have moved out, let alone that ex has no income, and I'm sure I must have some legal duty here. Does the Court Order protect me at all?

Also, the mortgage is screwing my credit-worthiness due to payment level compared to my income, I want to get my name off it and the house, and the Court Order says I should use my "best endeavours" to do this within 56 days, over half of which has expired.

I really want out but can't see how to achieve it without the house being sold which ex doesn't want to do, or him remortgaging which he can't as he doesn't have an income.

Any advice gratefully received!

Mel.

The_Eye_Of_Sauron

1. First point is, it depends on what is in the Court order; you mention a settlement, but can you confirm that there is a court consent order which has been sealed by the Court, not just an agreement as yet unsealed. It sounds like you have got a sealed order.

2. In situations like this, where one spouse is staying in the house, and buying the other out, the Court has NO power to force the mortgagee (the Bank) to release the spouse being bought out from the mortgage.

3. So, to cover this, usually, the spouse who is staying there (your ex) gives an 'undertaking to use best endeavours' to get the other spouse (you) released from her covenants under the mortgage. In plain English, to do all he reasonably can, to get the Bank to agree to release you. In the interim, he will normally undertake to the Court and to you to indemnify you against all outgoings on the house (mortgage and all household bills). Have a look again at your court order- it should not be you using best endeavours to release yourself, it should be him using best endeavours to release you (by, for example, remortgaging, or getting Bank to agree to release you, of which more below).

4. If this happens, then there is a legal document prepared whereby :

(a) the equity is transferred to your ex (you sign over your half share to him)
(b) he pays you the money
(c) The Bank joins in and releases you from your mortgage covenants. At that point, and at that point only, is your name off the mortgage. You are therefore free of mortgage.

5. In the alternative, ex can simply remortgage and you are released that way. Steps (a) and (b) take place, but instead of the Bank joining in the deed to release you, the new mortgagee advances the dosh to your ex to pay off the old mortgage, you are released by that act, and he is sole name on new mortgage (or with his new partner, though that is not that relevant here).

6. But what can happen is that Bank can say, 'No', which they will typically do if the remaining spouse hasn't got the income multiples to service the mortgage himself. I suspect, seeing what you have written, that this is the quandary in which you find yourself.

7. You should have the indemnity from him to pay the mortgage, but the worst case scenario would be if he can't pay the mortgage and gets repossessed. There MAY be comeback on you from the Bank if it is sold at a shortfall, but you mentioned that still some £60k equity, so even with the fall in housing values, you should be OK.

HTH, for now anyway.

welf_man

Thank you, that's really helpful.

Yes, it's a sealed Consent Order and you're right, it is him who is supposed to be doing his best! I think I was confused as his useless solicitor wrote an explanatory letter in "plain English" with the original draft, and it was wrong!! I should have double-checked though.

I feel much better now - especially as I've already had the agreed amount and paid off almost all the original debt and some that has built up due to lack of child maintenance.

Thank you again.

Mel.