Help!!! I want to cohabit

I am in the process of going through a divorce. I would like to cohabit in my former matrimonial home with my new partner but have been advised by my solicitor that if I do so for a period of six months or more then an Order for Sale would come into effect whereby it would force the sale of the home. Obviously I dont want this. Both myself and my new partner have been to see the mortgage company but because my husband left me with debt I didnt pass new application credit check!!! So we cant get my ex husbands name off of the mortgage, although my new partner can afford to buy him out. Could we omit the cohabitation clause from the Order - and what if he doesnt agree? My main concern is keeping the home (we have a five year old daughter) but also I want to be able to live in the property with my new partner!

Please help as my solicitor is rubbish!!

Very worried....

We often get situations on wiki where people talk about Consent Orders, whereas in fact there is none. The true position is that perhaps terms have been agreed, but not yet formally incorporated into a consent order.

Before you can be advised at all, it is essential to know whether there is an order sealed by the Court.

On the one hand you talk about an order - on the other you talk about omitting the cohabitation clause from the order. If the order already exists you almost certainly can't do that.

But if there is no order, and you have a new partner who can afford to buy him out, then a buy out could indeed be one possible way forward.

Does the order say that you have the right to buy your husband out if there is a triggering event ?

Everything depends on whether there is an order, or just a draft. So for starters can you please find out this information for me.

LMM

There is no order sealed. We are at drafting stages. I just wanted to know whether we could omit the cohabitation clause and if so, what would happen if my ex husband didnt agree.

Also, you mention about my partner buying my ex out. Obviously, my ex would have to stay on the mortgage as we cant remove his name so would that mean his name would remain and him still be liable, but he had no interest in the property? My partner would need his money protected.

Im just worried as I want to make sure that whatever is drafted protects the house (for my daughter most importantly) and allows me to cohabit there, and also to know what my ex husband cannot decide later down the line to make me sell it, as we wont be in a position to buy him out and remove his name, we can only buy out his share.

Thank you!

If you can't agree then the Court has to decide.
There is an argument that your child needs a home and she shouldn't be deprived of one merely because her Mum has a new partner.

On the other hand I think some judges might make an order, but your solicitor will be able to tell you about the attitude of the local judges.

On a practical level, there are going to be some triggering events in the type of order you are contemplating.

If your new partner can buy him out, could it be an option for the two of you to do just that, especially if you have enough income to take out a new mortgage ?

If you're going to have a Mesher order with triggering events, make sure that you have an option to buy incorporated in the order.

LMM

Thank you for your advice.

By way of a bit of financial background, my ex husband left me with some debt which i couldnt afford to pay once he left so I agreed with the various companies to pay them back a reduced rate thus entering into a debt mangagement plan. My ex husband took out an IVA for his bit.

When myself and my partner went to see the mortgage provider they said they would have to make a new application to enable us to pay off my ex and get his name off the mortgage (taking it on ourselves). My partner passed the credit score but I didnt due to my financial background, so we cant make a new application to take on the mortgage and my partner earns nowhere near enough to take it on himself.

Its a total nightmare and Im very stressed with it all! We havent got an issue with him staying on the mortgage and at mediation this was discussed with him and he was happy for me and our daughter to reside in the property until she was 18 (with me paying all of the bills inc the mortgage with no help from him). All he pays me is CSA for our daughter which isnt much.

What my main concern is, is that if we buy out his interest would there be any repercussions for any of us and could we end up losing the home if we decide to cohabit and am I being unreasonable by asking for the cohabitation clause to be ommitted.