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Quick, help please - house mortgage in divorce(9 Posts)
Need quick help please.
If I want to divorce DH and buy him out of his share of the house, but he needs to stay on the mortgage (as I'd fail the affordability test alone):
1. Would he need to retain a share of ownership in the house to remain on the mortgage?
2. If he ran up debts would that put the house at risk?
3. If I didn't buy him out of his share of the house what would the answer to question 2 be?
1) yes he would
2) yes potentially if he declares bankruptcy or defaults later on as you share a credit link via mortgage.
3) same as 2
Basically if you decide to buy him out then you will need to apply for mortgage in just your name to do so if you still intend to have a mortgage (this will be subject to normal credit checks).
Otherwise you will keep going with existing mortgage in joint names and, regardless of whether he contributes financially/who lives there, you will both affect each other’s credit indefinitely
1. No, he would not. You and he would hold the property on trust for you absolutely (subject to the mortgage)
2. No, if the trust in your favour were properly registered, he would have no beneficial estate in the property to which a charging order of bankruptcy could attach (although a trustee in bankruptcy can try to overturn a matrimonial order)
3. If you didn't buy him out, so your deal was that he retained a future interest in the property, if properly drafted then anyone to whom he owed money would be unlikely to be able to force a sale to get his share any earlier than he could do, and would be unable to recover more than his share.
Please don't leave this to chance. Get proper advice and get the order and charge or trust deed drawn up correctly.
Thank you both for your replies. I was hoping there might be some clever malarky that could be done. I won't be leaving anything to chance, oh no. So what sort of solicitor would know about the trusts? Same solicitor as would sort the divorce?
Go to a reputable firm of solicitors who specialise in family law. I used a one man band years ago to divorce and he had more work than he could manage with and let me down. A good firm will have enough staff to prioritise you at all times and enough expertise that you will receive excellent and up to the minute legal advice. Good luck.
Thanks for this thread - I am at the same point with my ex and now trying to work out what is a fair amount to buy him out of the property at.
What bertbibby said. It's quite a common scenario, any divorce lawyer who is half decent will have dealt with it numerous times.
However the main issue is getting your ex to agree this - as it will mean his name is still on the mortgage he will have difficulty getting another mortgage elsewhere.
Often ordered by the court though when required to keep a home for the children.
This is potentially good news. Is there anywhere I can read more about how this would work?
Would he be on the mortgage only until kids are 18/21 years old or until it is all paid off (30 years)
Yes I can see might be tricky to get him to agree but I'm hoping might be possible.
You would undertake to use best endeavours to release him as soon as possible e.g. your income changed.
There may be a default order for sale if you can't release him once the kids were 18/21. Remarriage or cohabitation with another person is also often a trigger for release or sale if you can't.
It would be unusual to have it open ended until the end of the mortgage term but will depend on your circumstances.
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