Can i be forced to stay on the mortgage

I'm still trying to hammer out an agreement with my ex over the proceeds of the sale of the house. This is not going well as he has continued to try to hide his financial position, he is claiming he is debt but will not provide prof of the debts and has so far refused to provide full financial disclosure, for our solicitors to advise.

We are divorced and have two small children who live with us 50/50. I am on ESA and he has his business which he owns 50/50 with his new partner up for sale.

He is now at the point of threatening me with court. I feel at this point court may be they only way to get this matter resolved.

I am living in the house we jointly own and have no way of buying him out, I want to sell and get a Clean Break order. He wants to buy me out of my share but he has no way of raising a mortgage on his own. Given that the house is a three bedroom and the court consider our needs to be a two bedroom property each as the children are the same sex would a court force me to stay on the mortgage and allow him to keep the house?

Firstly, the court can do nothing about the mortgage. The mortgage is a private contract between you, your ex and the mortgage company. You can redeem the mortgage or have it transferred into different names - subject to the mortgage company agreeing to this step.

Secondly, if you are the main carer of the children, where would you go if your ex were to take on the property in his sole name? You may as well stay in the property and your ex can have a deferred charge on his interest (this is a 'mesher' order if the court makes such an order).

Even if the principle of your ex taking on the property was accepted, he would have to demonstrate that he could service the mortgage AND pay you out. It sounds as though this is unlikely.

Selling appears to be the obvious choice as you can downsize, reduce overheads and focus on the needs of the children.

Charles

Thanks for the reply,

The children live with both of us 3.5 days a week.

My suggestion has been that I be given enough money to purchase a suitable property for the children and myself outright as I cannot raise a mortgage. He is adamant that he doesn't want to do that.

His suggestion is that i live off of the money he gives me until it runs out.

What are the total net sale proceeds likely to be on the sale of the FMH and how much would money would you need to buy a 2 bedroomed property for yourself and the children?

Best Wishes
Deborah

Hi Deborah66,

I just had a valuation yesterday and it has around 200k equity after mortgage is paid off and selling costs are taken into account.

I would need 115k to get a 2 bed flat but am thinking of suggesting 110K and hopefully i will be able to borrow 5k from family.

His business is up for sale for 70k and i have worked out they have around 10k business debt that i am aware of, if the business sells for 60k that leaves the ex with 25k as he gave an extra 25% share to his partner, so now 50/50 equal partners in the business. He originally had a 75% share.

Does what I suggest sound feasible?

It will leave him with 115k to also buy a 2 bed property outright.

Hi IT84

The information about your husband's business is that what he has told you or do you have financial disclosure to support this?.

Has your husband always been self employed? What are his future prospects of employment? Why is he selling the business? What kind of work does he do, will he be able to set up on his own or get a employed position? The reason I ask is that your husband may have borrowing capacity in addition to the sale proceeds, if the property is sold.

In the absence of financial disclosure, it is difficult to say what is reasonable or not.

I feel that your position regarding the sale is reasonable, as to what percentage of the proceeds of sale you would receive depends on other factors including your husband's and your own future income and borrowing capacities. You say you are on ESA but is that long term or could you return to work in the future?

If you ask for 115K, that is 57.5% of the net proceeds (if you get full asking price on net sale proceeds of £200K). If you have limited income and borrowing capacity, and your husband has both a borrowing capacity and lump sum from the business, you may be entirely reasonable asking for this amount or you could be selling yourself short especially if there are other assets and maybe a pension.

Court may be beneficial to you, as before the first hearing you both have to file form E's and you may get the financial disclosure to help you make a more informed decision.

Best Wishes
Deborah