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Family law advice - removing ex-spouse from deeds and mortgage(6 Posts)
I have agreed to help a colleague with a court application she wishes to make to have her ex-spouse removed from the deeds and mortgage of her home. I am a Solicitor but this is totally NOT my area, so would appreciate some guidance!
Brief facts are that she and spouse bought a house under shared ownership scheme and both appear on deeds and mortgage deed as joint tenants. He sounds like a total loser and never paid either towards mortgage repayments, rent or any bills. He did make ad hoc payments to buy food or clothes for their child.
Some years ago they split up and my colleague conducted the divorce proceedings as a litigant in person as she had no money for legal advice unfortunately and was ineligible for legal aid. She did not deal with the question of ownership of the home unfortunately. A year or so ago, the ex-spouse said he would sign the home over to her in exchange for £4000. Rather predictably I am afraid, she took him at his word, handed over the money but he then refused to do this and says he will need another £4000 to do this.
Assuming that the mortgage company will give her the mortgage in her own name [please correct me if I am wrong but I understand that without a court order the mortgage company can re-issue the mortgage deed in her sole name????????] she would like to issue proceedings to have his name removed from the deeds of the property and it transferred into her sole name.
I assume that to do this I issue using a normal part 7 claim form and the remedy is that an order is issued removing ex-spouse from deeds of property [and mortgage deed?]. However, I am unclear what the legal basis of the claim should be - is there some special statute that deals with this or is it lack of consideration (never contributed to property) etc. Likewise, I assume the particulars of claim just tell the story so to speak?
Not a lawyer, but I do know that to get Ex of my deeds he had to sign agreeing for his name to be removed.
First job would be to see if she can take over the mortgage in her own name with the mortgage company. At the Halifax my ex just had to take his passport in & sign that he was happy to come off the mortgage & deeds. How much equity is there? £8.000 doesn't sound a lot in the great scheme of things. Transfer of my property happened before the consent order was drawn up & stamped but I didn't pay any money.
Thanks, yes I should have made myself clear. Ex-spouse will not agree to sign anything unless a court orders it. That said, I doubt he'd bother to turn up to defend any proceedings, but he certainly isn't going to make it easy for her if he can possibly help it.
I don't know the ins and outs of shared ownership, but I think there is very little equity in the property as it was bought before the property crash so probably only now returning to its original purchase price and they don't actually own much of it yet (20% or something)
There are two separate legal issues here - if htere is a binding verbal agreement that he will transfer for £4k then yes issuing a standard claim to enforce the contract might do the trick. However this is really more a divorce law issue.
She rather foolishly concluded a divorce without finalising the finances. What she and he need is to draw up a consent order which says he accepts £4k in full settlement either has of claims against the other on the divorce for a "clean break" (neither to claim maintenance from the other in future etc) each keep their own pensions and any debts in their name except she takes over the mortgage. Only do this if she checks first the lender will allow it - many many would much prefer to people guaranteeing a mortgage not one so it may not be that easy to get him removed unless he has no job and she does. Assuming the lender will agree then you get that consent order sealed no need for a hearing before a family law judge and then it finalises their finances forever which is much better than just doing this one transfer of the property particularyl if he has no job and might want maintenance from her later etc.
If there is not much equity in it why should she pay him £4k to take over debts? Anyway let us assume she is happy with that or even £6k.
Then usually once the consent order is sealed by the court then the other spouse has to permit the house transfer - in our case I remortgaged to pay him off on our divorce and we had a conveyancing lawyer involved to do a remortgage and the property transfer but perhaps that is not needed here. Then he will sign the transfer like any other property transfer and it is moved into her name. I would imagine the lender might insist on a property lawyer being involved and require your friend to pay a few legal fees for that.
She needs to complete a form A within the divorce proceedings. This kind of thing should only take place within the divorce proceedings.
The court can then order that her husband has to transfer the property into her sole name. She may or may not have to pay him some money for it depending upon the equity in the property.
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