The "Best Endeavours" clause. Would you?

Hi folks,
So we have arrived at the division of assets, which we have agreed in principle.

My wife''s solicitor has tabled the settlement (precursor to the Consent Order) as follows:

"Your client will transfer his legal and beneficial interest in the FMH - in return for our client arranging for a lump sum £x to be paid to yours.
Our client agrees to use her best endeavours to procure the release of your client from obligations under the mortgage."

She has an offer in principle from the lender to enable a re-mortgage to buy me out, we have copy.

But after extensive reading of these forums, this wording seems far from watertight, in fact ambiguous and I believe puts me at risk of being held in limbo.
My solicitor recommends removal of "best endeavours" - replacing it with a defined time frame and making release simultaneous with money transfer.
She is totally against this citing that she may find herself in court if me, or my representative, delay proceedings.
This is irrational as I wish to expedite so I can buy another house, she knows this.
I believe her fears are unfounded but if she persists I expect this will stall and end up before the court. I believe its too risky to accept the draft, above given the ambiguity of this phrase.
What would you do?
Rad.

Bear in mind if she doesn''t release you from the mortgage now due to it falling through or something then "best endeavors" could mean doing as little as enquiring about a mortgage every few years.

You could be in lingo a long time. Your solicitor is clearly advising you of this for a reason.

This is a question which does come up on wiki from time to time.

From the point of view of the man ( excuse the sexism but it usually is a man )it is not a very satisfactory situation at all ; but what is the alternative ? The Court''s main objective is to ensure a homne for the children, which usually means that the wife as the main carer needs the right to continue to live in the FMH. All too often the man is left with no alternative but to rent.

That of itself would be bad enough, except that it makes the ex a gratuitous guarantor for the mortgage. One safeguard is ( or should be ) that the (ex) wife must be able to afford the payments; otherwise such an order should not be made at all.

One of the problems, which must be acknowledged, is that the Court has no power to compel a lender to release a borrower, and there is no earthly reason why any lender would want to.

One of the bees in my bonnet is that the expression '' use best endeavours '' should be expressed in such a way as to impose a continuing obligation, rather then a perfunctory request to the lender to release the ex husband, knowing that it will be refused, and then say she''s used her best endeavours and has discharged her obligation.

There are many potential reasons why circumstances may change to the point where release of the ex becomes possible. For example, the ex may re-marry. Or the equity might become so low that the lender has more than ample security from the property alone.

From the man''s point of view, what may be important is (a) that there is enough equity in the property to make it a reasonable option for the ex husband to get a charging order to secure any money he may have to pay, and (b) that the man is notified promptly if payments are getting into arrear so that he can, if need be, take preventative action.

In the particular case which has prompted this rather long post , there should not be a problem and I''d say the poster was getting correct advice.

LMM

Thanks folks some very good advice, thanks for taking the time.
Time will tell if she accepts a more robust timescale/wording.
I actually think she may be stalling in the hope the marriage can be salvaged - I see no other reason?
Rad

The best endeavours clause is a half-way house as the court does not have the jurisdiction to release a party from a mortgage.

Equally, if the purpose of the order is to allow one party to stay in the property, it would seem odd to make an order with a timescale that rests entirely upon whether a mortgage lender can (a) offer the appropriate mortgage and (b) can be bothered to pull their finger out to meet the timescale.

It would be possible to have a best endeavours clause with a long-stop date whereupon the house would be marketed for sale on joint instruction. Say, 9 months from now?

With that type of arrangement, the wife would have 9 months to arrange for release from the mortgage otherwise she would have to market the property. This would be a fair compromise for both parties.

Charles

Charles,
Thank you, and excellent and logical compromise.
Yes the aim is for her to keep the FMH as I have a young child who will stay with her also. Her earnings are double that of mine and she has documented no issue raising the required £80k and pension transfer to settle with me.

I see the logic of the statement previously, and my wife''s understandable concern that she may end up in court for not meeting the timescale of 56days I have suggested for the CO.
But, I''m equally cautious that I could end up stalled.
Given our circumstances I think it hightly unlikely, but should she reduce her work hours/earnings then it will impact her ability to raise a new mortgage.
I just want to negate that risk.
Your idea is sound, thanks again.

RA