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Transfer of equity post divorce query

(16 Posts)
whattodoforthebest2 Mon 03-Mar-14 08:54:00

One of the terms of the consent order in my divorce 3+ years ago was that within a specified period of time (3 or 6 months IIRC) I would have the property transferred into my name solely, ie XH's name would be taken off the deeds.

When I spoke to the mortgage company, they said that as my income was too low to cover the (huge) mortgage, they couldn't do the transfer. So his name has remained on the mortgage and deeds since the divorce. I'm not bothered about changing it now, but what happens when I sell? Will he have any right to the equity in the property?

mumblechum1 Mon 03-Mar-14 08:57:55

Yep, your solicitors should have been on his back from the word go to sort this out. The consent order should have a bit on it to say that in the event that the lender won't consent to the transfer of the mortgage account (as is often the case), you will indemnify him against the lender but the transfer of the property should have gone through years ago, with the lender co-signing.

If the deeds are still in joint names he would have to co-sign the conveyancing docs as he's still, on paper at least, a co-owner.

Get roasting your solicitor's ass is my advice! They should never have closed a file without this being sorted.

LondonSuperTrooper Mon 03-Mar-14 09:11:21

Watching with interest as I'm going to be in a similar position.

whattodoforthebest2 Mon 03-Mar-14 10:23:03

mumble, thank you. I ended up representing myself towards the end of the process - the sol helped me draw up the papers and then she took a backseat as I'd run out of money. She had prepared the consent order tho' and I attended the court hearings on my own and agreed the final deal.

I imagine he will happily sign the papers as he can't wait to get off the mortgage and buy himself a new house for his growing family. But what can I do about the equity?

LondonSuperTrooper Mon 03-Mar-14 12:03:34

Is the consent order a legally binding document?

whattodoforthebest2 Mon 03-Mar-14 13:30:33

Yes, its the final document which states all the terms that have been agreed by both parties. The court stamps it if the judge is satisfied that the terms are fair.

Collaborate Mon 03-Mar-14 13:31:57

You'll have to instruct a solicitor. The lender won't agree to proceed without it.

Nappaholic Tue 04-Mar-14 23:33:38

The consent order settles the equity on you as beneficial owner from the date of the court order/decree absolute, but ex remains a joint legal owner. As the above poster says, he'll probably be glad to sign on an eventual sale, as he'll then come off the mortgage, but he can't come back for a slice of the equity then (assuming the Order says it is all for you).

whattodoforthebest2 Thu 13-Mar-14 12:11:31

Nappaholic - thank you very much for your comments - only just come on here to see them - that's what I was hoping would be the case.

LauraBridges Thu 13-Mar-14 12:29:41

You need to make sure the consent order does do what napp says it does. If you did a lot of it yourself and finalised it it may not have ended up saying thatl. Can you put on here the exact words it says without figures as to the transfer of the property?

whattodoforthebest2 Thu 13-Mar-14 12:55:41

Laura - these seem to be the relevant clauses:

And upon the wife undertaking to the husband and agreeing promptly to discharge all mortgage interest and capital monthly repayments due in respect of the mortgage in favour of XXXXX secured on the former matrimonial home XXXXXX aforesaid and to meet all bills and utilities on the said property and to indemnify the husband up to and including the date of transfer as referred to below in respect of the same.

And upon the wife undertaking to the husband and agreeing to use her best endeavours to procure the release of the husband on or before completion of the transfer referred to herein below from any liability under the mortgage secured upon the property XXXXX in favour of and in any event to indemnify the husband against all such liability.

Also:

The husband shall transfer to the wife all his legal estate and beneficial interest in the propery situate at and known as XXXXX registered at the Land Registry under title number XXXXX subject to the mortgage secured thereon in favour of XXXXX within 56 days of the date of this order.

LauraBridges Thu 13-Mar-14 14:44:48

The first to bits- and upon - set out the background and the last paragraph is the important bit that results - if the wife does those things - pays the mortgage etc then gets him taken off the mortgage then in 56 days of the date of the order (which is obviously long gone now) the husband will transfer his share to her. So it was written as if he would be removed in 56 days although why anyone would agree all that on either side when it was clear to all there was no chance the lender would remove him as the wife had a low income I don't know.

Napp, above, who seems to know about this area might be able to help. That does not seem to say expressly to me that if the wife fails to do those things then even if she does do the part about paying the mortgage her husband has no claim on any increase in value or can avoid any liability for negative equity. However perhaps that is implied in these situations?

Is there a way to get him off the mortgage? I remortgaged when we divorced and could afford it (just). My daughter bought and let out and does not live in her place and that enabled her to afford somewhere she could not otherwise. If you had a buy to let loan and let the house at least for a bit they include the rental income from the letting as "your" income which might enable you to persuade the lender to take him off the mortgage so he can get on with his life and buy somewhere else.

whattodoforthebest2 Thu 13-Mar-14 15:08:12

Thank you for your comments Laura. Actually he's already bought another house, has 2 mortgages and so is settled. My concern relates to the equity in my house. It's likely I'll sell in a year or so and downsize, so I want to be sure that he won't have a claim on it at that point.

The lender does take CM into account, but this is reducing as my DC reach 18, so I can see that they would be concerned about my income. Mind you, I've been paying the mortgage on my own for 7 years now without any glitches...

LauraBridges Thu 13-Mar-14 16:05:47

I don't want to worry you and probably the intention is if you are paying then he doesn't get the equity rise but I am not sure and legally if someone jointly owns they get half the value (and bear half the risk of negative equity).

It may be worth paying a family lawyer for half an hour of time to advise and draft a one page agreement you and your ex now sign making it 100% clear.

prh47bridge Thu 13-Mar-14 16:17:42

I don't want to worry you and probably the intention is if you are paying then he doesn't get the equity rise but I am not sure and legally if someone jointly owns they get half the value

The OP and her ex have a consent order. That should specify how the equity is split and contain a clause dismissing future claims. Provided it does contain those clauses the position it sets out is final. The OP's ex can't come back and ask for more, nor is he entitled to more just because his name is still on the deeds.

LauraBridges Fri 14-Mar-14 07:44:33

I know but the part of the consent order she posted above does not say that, does it? So let us see any other parts. The bit posted above to my mind does not remove the right of the husband to any future increase in property value (other than perhaps by implication but that is risky to rely upon).

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