Indemnity

Hope someone can help,as my solicitor is next to useless in giving me advice - My soon to be ex wife's solicitor is drafting a Consent Order for our split and it quotes 2 Recitals, one being that I 'Indemnify my wife against any liabilities that have arisen in respect of the outgoings on the FMH until such time as she has vacated the property or until all of the sais outgoing has been transferred into the applicants sole name' - me.
The second Recital reads 'The applicant undertaking to the court and agreeing to the release of the respondant (her) from any liability under the mortgage secured upon the property within 14 days of this order and in any event to indemnify the respondant against all such liability'.

I have been paying the mortgage and utility bills from our separation last June, and have stated that I will continue until the Decree Absolute.

Should I be concerned about agreeing to the above Recitals being included? Much appreciate a response.

From what you say, the mortgage is in joint names and you are having the property transferred into your sole name.

If I am correct in this then the next question is, whether the mortgage lender has agreed to release your wife from her obligations under the mortgage. If they have, all well and good, but if not she will remain liable if you default.

The Court cannot order a mortgage lender to release your wife from her obligations.

It is not unreasonable, in my view, that, if you are having the house transferred into your name, then, AS BETWEEN YOURSELF AND YOUR EX you should be liable to make the mortgage payments. If you default and she is forced to shell out by the mortgage company it is reasonable that you should indemnify her.

You should not agree to the second recital unless you KNOW
the lender will release your wife. If you aren't sure, you should NOT agree to this form of wording. Breach of an undertaking to the Court can be serious and therefore you shouldn't give an undertaking unless you are SURE you can deliver it.

As regards the first recital, it's perfectly reasonable for you to indemnify your wife against household expenses after she ceases to live there. But as drafted this would make you liable for household expenses when you are still living together. What if she just sits tight and refuses to budge ???

Mike 100468

Thanks for your reply Mike.

You are correct, I am buying my wife's share of the house and she is using that to buy a property herself.

She originally wanted me to pay her share to her without her finding another property, meaning that she would stay in 'my' house with a large wedge of money sitting in her bank account until such time as she found somewhere suitable! I have now insisted on a Order which gives her 7 days to move out after receiving the payment. Of course I would not be so harsh as to implement this to the day, after all, we have managed to live under the same roof for 10 months now, but I had to insist on something to avoid this becoming open-ended.

Regarding the outgoings & mortgage indemnity, I have continued to pay the mortgage & bills since I found out about her affair and have told her that I will carry on until she leaves, but I have included in the indemnity Recital that any new charges against the property or outgoings would be the responsibility of whoever takes them out. I also remind her that this would protect both of us, because I could do the same to her.

The revised Consent Order is now being re-written and hopefully should be lodged soon. I have calculated the maintenance payments for my near 17 year old daughter from March, and I am giving these to my wife as a lump sum capitalised payement, so each month that goes past sees me giving money to my wife that you can bet won't reach my daughter.

Thanks Again.