Divorce - quick question

[helen1122]

Hi, I wonder if anyone can help/has experience of similar please?

I’m about to start divorce proceedings and will also have a clean break order. So far we are agreeing on terms etc.

I will remain in the family home, currently the mortgage is in joint names and the mortgage company have said I dont earn enough based on salary multiples to remove my husband from the mortgage. My husband has agreed to stay named on the mortgage for a period of time until our daughter is 16 (or sooner if I pass the mortgage co criteria).

He has agreed that he will not contribute towards payment of the mortgage or be entitled to any equity currently or built up in the property during the time he remains named on the mortgage.

Can this be written into the consent order and is it common that a judge would agree to this? I presume the mortgage company would not need to authorise this agreement?

I’m sure people will have opinions on whether we should do this/why shouldn’t he be entitled etc but this is what we’ve agreed, I’d just like to know if thiscould he included in the agreement? Many thanks

[SlightlyMisplacedSingleDad]

I think you need to speak to a solicitor on this. What you're proposing is complicated.

As joint mortgage holders, you are jointly and severally liable for payment of the mortgage. So, if you couldn't pay, your husband would have to. No consent order can get around that. So he remains liable for your debt, which means this isn't really a clean break.

On a linked note, if the house transfers to you as a consequence of the consent order, there may be issue with him holding a mortgage on a property that he does not own. That would not be acceptable to a lender. So, the house would need to stay in joint ownership for as long as he was on the mortgage. Again - not a clean break.

A solicitor would also advise him to consider what happens if he does end up paying the mortgage over the coming years. Does it remain the case that he gets no equity? He would therefore be leaving himself exposed to you defaulting (for whatever reason, including ill health etc) and him having to make all the payments, without any equity. His ability to get another mortgage would also be compromised, as this one would be taken into account first - so he'd be tying himself into a life of renting until you were ready to take him off the mortgage. He may be willing to do that (although many people would not be willing to put their life on hold like that), but it illustrates that there's a lot to think about, and therefore consulting a solicitor is wise.

In any case, a Judge will always want to be assured that you've both had independent legal advice before signing off a consent order....but particularly so when what you're proposing is all downside risk for one party, and gain for the other. Independent legal advice is therefore a must, otherwise a Judge probably wouldn't approve the order - they want to know that your husbamd understands what he's committing to.

[helen1122]

Thanks for the lengthy reply. I understand what you’re saying and he has agreed/is aware and accepts what he has offered to do. It’s only a period of 4yrs in which time if I can’t get it in my own name I’ll have to move so that I can get a mortgage in my sole name. Our agreement is I get the house and he keeps his pension, right or wrong that’s what we have verbally agreed, now I’d like to make it legal. Thanks again

[AMAM8916]

I think it all sounds pretty fair. You keep the house and all the equity and pay the mortgage yourself for the next 4 years (but his name stays on it) and he gets to keep his pension and I assume savings and things like that?

4 years isn't a long time. Even if you do stay in that house for 4 years and pay the mortgage, it really isn't a long time for him to be commited to the mortgage and he sounds happy to do it.

I agree with PP though, it will mean you can't get a clean break. A clean break usually means dividing the assets and severing financial ties but you won't be doing this. A judge will agree with whatever you two have decided to do. It's usually solicitors that cause the issues and push their client to get more but you have a mutual agreement so that seems the best way forward.

Will your daughter be 16 in 4 years or will the mortgage be paid off in 4 years?

[helen1122]

HI, 16 in 4yrs. Just pension, sadly no savings to be had by either party. Thanks