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final hearing

(11 Posts)
ddrmum Sat 27-Aug-11 15:36:41

i desperately need some advice re: a proposed sale of the FMH. I already had a house prior to meeting and marrying exH, which i kept. I still live in the FMH with our 3 DC (all <7yo) but am finding it a struggle to mange mortgage, bills etc. I have proposed that the FMH is sold so that i may return to my original house which is more affordable and still meets the needs of the DC. Exh is refusing to allow the FMH to go on the market as he wants my old house! Exh will do absolutely anything for financial gain (he came into relationship with nothing but debts) & has already made malicious & untrue allegations about me to police - all unsubstantiated. In the last FDR, the judge alluded that this would be the best thing for the DC & exH would have to provide a 'substantial payment to make the FMH affordable for me' - exH offered £10k. Exh unlikely to get a mortgage & I may have to reduce my hours at work due to malicious behaviour of exh affecting the children. Am i within my rights to just move into my old home or will I be penalised by the courts? The mortgage on FMH is already the equivalent of 3mth in arrears & I still have huge legal fees to pay off my credit cards - all in all it is unmanagable. Would really appreciate any views, ideas, help or advice you can give.

babybarrister Sun 28-Aug-11 21:20:54

if you have had the FDR already your final hearing must be soon so can you not just wait for an order for sale of the FMH?

I say that as I assume you are renting out the other house so would lose income and you are on the mortgage of the fmh so the mortgage co could still pursue you/and or force an unattractive sale price .....

ddrmum Sun 28-Aug-11 21:36:28

Hi babybarrister, I'm just really worried about falling further behind with payments. i really don't want to br forced to stay in a house I cannot realistically afford. The other house is being rented out to a family friend so getting back in won't be a problem. The only problem is the exH who wants to have that house - he has no other way of buying a house for himself. Is there any chance that i could be forced to sell both the FMH & my house bearing in mind that i have 3 children to support and the ex also has 'needs'? Many thanks for your help.

ddrmum Sun 28-Aug-11 21:52:13

Just as an aside, are the courts likely to take his poor behaviour into account? I ask because he constantly harrassed & abused my solicitors which increased my costs considerably so costs are being considered in the final hearing. He's getting free advice from his brother's gf & my bill was in the region of 30k. It has also becaome increasingly clear that he is using the children in an attempt to secure a house for himself and so far refuses to agree to the sale of the FMH or to buy me out. Sorry if this is complete nonsense sad

babybarrister Mon 29-Aug-11 09:05:31

tbh it sounds complicated so I am not going to comment further - you need to take advice from your solicitor as they know all the facts

in theory a court can make orders regarding the sale of all properties - whether they will in your case I simply have no idea and could not comment without reading all of the files I suspect ...

ddrmum Mon 29-Aug-11 09:35:28

Thanks very much babybarrister. I think it would be grossly unfair if the court ordered sale of both properties as I still need to house myself and 3 young children, just because my ex wants a particular property which he has had no connection with. The sale of both properites would not release enough money to start again due to capital gains etc so would be pointless, but that doesn't mean it wouldn't happen. Fingers crossed.........

oldenoughtowearpurple Mon 29-Aug-11 09:54:00

Babybarrister clearly has a professional understanding of the situation, but my general feeling would be
- if you want the court on your side, stick to following the court's jurisdiction.
- presumably £10k is not a 'substantial payment to make the FMH affordable for me'
- so the judge will either accept that XDH can't afford to pay you enough to make it affordable, instruct sale of FMH and allow you to move into the other home OR if he can afford it insist XDH makes you a payment that does make it affordable, so you can afford to stay

sneezecakesmum Mon 29-Aug-11 12:08:53

Poor you it sounds as though you are going under for the last time! I assume you have spoken to the mortgage company and are paying interest only? Even if you talk to them they will be less likely to repossess, which is in no ones interest if the house is sold off at well below its market value.

It sounds as though selling of the FMH and paying him off and moving into your old home is sensible all round. Would he agree to this - it may seem unfair if you have (in effect) paid for both properties, but at least he may leave 'your' house alone. Its very complicated though expecially as he's just not prepared to co operate with you and there are lots of financial/legal issues going on here. I assume you are both expected to have agreed something before the final hearing? Hope if it goes to the judges decision it goes in your favour x

ddrmum Mon 29-Aug-11 19:21:31

Hi sneezecakesmum, the mortgage company have been very unhelpful and refused to allow me to go on interest only but have let me go on 1/2 payments for a few months hence the 3mth of arrears. They will let me continue on reduced payments if the house is on the market & I've kept them up to date with things. There is little chance of him agreeing to the sale of the FMH and me moving back to my own house as it will mean that he doesn't get a house. I would need in the region of £80k to make it affordable and this is unlikely to be got from him - he has breached every court order to date & has previously borrowed £60k from me which he refused to repay. I genuinely cannot afford to stay here and pay living expenses and debts (never had any debt before this) so I suppose what I want to know is is there anything stopping me from moving back into my old house to 'force' the sale of the FMH? He doesn't pay the mortgage at the moment but should pay half if I'm not living here, or doesn't it work like that? Sorry for the long winded explanation blush
oldenoughtowearpurple - thanks for your comments and tbh I would prefer to sell the FMH as he still considers it to be 'his', and make a fresh start with the children in time to come. He still thinks it's ok to intimidate and be abusive towards me so somewhere else in the long term would be better all round sad

sneezecakesmum Tue 30-Aug-11 22:33:34

dd... The only experience I've got of similar circumstances is my BIL who was thrown out of his home at xmas and his exP stayed in the FMH and offered him £10K to sign it over. It has about £110K equity. Because they were never married it is only about property and if it were the case with you your EH would have no claim on your previous house, so you could sell your present one at any price, divide any equity and that would be that. It is so simple for BIL, but unbelievably complicated with married couples. I suppose because you were married your first house has just gone into the 'pot' for division? Not sure how its done in your case, but even if natural justice says you should keep your first house, I guess its not the case?

If you just walked away from your present home (in effect hand back the keys to the mortgage company) they would repossess. I think as your ex is no longer living there he has in effect already done this. Would a repossession affect your credit rating for the future? Discuss this with the mortgage company, but again it depends on what the court has decided re joint property.

Is £60 K too much for a small claims court (probably sad)

I think it will have to await the final hearing and hope it goes the way you want it, if they order the sale of the house (how can they do otherwise if neither of you can afford to live there?) its in no ones interest to have it repossessed.

ddrmum Wed 31-Aug-11 09:39:08

Hi sneezecakesmum, it's all so wrong & such a mess. He's been untterly obstructive throughout these proceedings as it's not what he wants although cause of divorce is his DV!! The courts granted me an occupation order last summer for the FMH as he refused to leave - I and the kids did for our safety. To walk away would knacker my credit rating (& his) and I have to think about the longer term, providing for the DCs until they are 18 at least! My house has about 120k equity and FMH 70k equity. Once everthing is paid for on my house there's only about 60k left which would not help my situation or allow me to stay in the FMH.I can't see how I could be forced to stay in a house that I cannot afford to keep, but the legal system has proved that there's little in the way of common sense prevailing in this situations. Many thanks for taking the time to respond to this thread xx

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