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56 days to comply(23 Posts)
In my consent order the wording states that my husband shall transfer all his legal estate to me in the interest of property subject to the mortgage secured there on in favour of (mortgage company) within 56 days of the date of this order...
The problem is fast forward a few years(!), I didn't do it. So the mortgage is in both our names and so are the deeds.
He wouldn't have any claim over my property would he??
If the mortgage and deeds are in his name too then yes, he does... Unless of course you can prove that he broke the order/or he's paid nothing towards the property. That's so far as I understand it anyway, maybe the law is different where you are.
What I am curious about though is why you waited a few years to start worrying about this instead of sorting it when you got the order
But the divorce states that we have no say over each other's assets including houses. is this going to come back to haunt me when or if I sell?
Yes because you didn't follow the order... It doesn't matter what the court said way back then because youve not acted on it. You can't sell the property without him because he's on the deeds...
Thanks for the advice. Are you legally trained?
At the moment, your house belongs to both of you - he remains on the deeds, so he is still an owner.
The purpose of the order was to remove him from the deeds so that he was no longer an owner. Do you know why he didn't comply?
I'd get legal advice on whether it's possible to enforce the order now, or what your next steps should be. You need his name removed or he is a joint owner.
The court order intended to put you in the correct position when you were divorced - his name off your deeds, and no claim on each others properties. It's worthless in itself - it showed the position that you should be in. It doesn't override the deeds.
So until he is off the deeds he "could" want a share in any equity I make on the house?
It wasn't that he didn't comply I didn't chase it up as I wasn't happy with the wording in the document then it all got forgotten about.
I thought the court order rose above all else?
I think all you can do is get your solicitor to write to him with a TR1 and ask that he signs and returns it in accordance with the order.
The lender also needs to sign the TR1 - presumably they consented to the transfer of the mortgage account into your name all those years ago?
Both solicitors have been a bit rubbish to be honest, they should never have closed their files down with this outstanding, so they shouldn't charge you anything to sort it out now.
So until he is off the deeds he "could" want a share in any equity I make on the house?
Yes. At the moment it's his equity too - the house belongs to you both. How successful any claim would be would depend on circumstances but the court order likely wouldn't be enough to show that he shouldn't benefit, especially if it was your fault that it wasn't enforced.
Did you want an amendment to the order? That appears to be fairly standard wording.
You need legal advice really, to cover what claim he has if any, and whether you can enforce such an old order or if you'd need a new one. If you need a new one, would he then be entitled to equity until the date that he was ordered to be removed? Etc. It's complex. It'll make selling a nightmare unless you and him are quite friendly and he's unlikely to make trouble.
If it helps, I think it's unlikely that the court would entertain a claim for an extra slice of the equity. If they did, you'd have a good claim for negligence against the solicitors for not finishing the job.
The mortgage couldn't be transferred to my sole name as I can't afford it on paper (I can only afford it because of his spousal maintenance and child payments to me). the order also states that i would use my 'best endeavours' to release him from the mortgage but it was clear to everyone that i would never be able to do that.
I don't have a good relationship with him but if/when I do sell I am hoping that he will just be happy to have his name released from the mortgage (that is huge).
I'm not really sure what you want here, you realise that there's not active lawyers who deal with posts right? Mostly people who comment here have some experience or knowledge of the law however, so in reply to your question, no I am not legally trained. However I have had experience with this side of the law.
And in my experience, you can not sell the property without his consent when he is on the deeds, and he has rights to the proceeds made from the sale of the house if it is also his property too (which it is with his name on both the mortgage and the deeds).
If you want a lawyers advice, go see one. It's possible you can have his name removed from the deeds but I'm not so sure they'll enforce the court order after such a long time has passed, especially since your only reason for not having it enforced is because you didn't like the wording of it...
Family law solicitor here.
He has transferred his beneficial interest to you by virtue of the court order as long as there were no conditions such as doing so upon you paying him a lump sum or releasing him from the mortgage. He therefore has no beneficial interest in the equity as long as you complied with any conditions for the property to be transferred
You've had terrible "advice" on here
It's actually very common for properties and mortgage to stay in joint names when one party can't release from the mortgage and despite their best endeavours it can't be done for some time.
If you are now in a position to release him from the mortgage then he can transfer the legal title
If not, then as long as he'll sign when you sell there's no problem
If he won't sign when you are trying to sell a judge will sign for you to enforce the court order
There are regular lawyers who post on here and if you search our posts you will see we appear to know what we are talking about and the other lawyers tend to agree with us
Are regular lawyer posters who come to mind
I have posted on the legal boards for years under various names until it became easier to change poster name on each posting so now I post under a slightly more professional name than my usual sweary ones
The crux is that you have a final court order on divorce btw presumably in contrast to drowninginwallsricke
Glad you got some proper adivce from familylawsolicitor
No idea why people comment on posts that they are not qualified to answer, it's not helpful and potentially dangerous
Sorry marlowwills just realised I missed you from the Lawyers of Mumsnet list above but I think this is not your area?
If a mortgage can't be taken over by one party then mortgage co will often not consent to transfer of legal title so it all stays in joint names for a long time and may have been what was envisaged and understood would have to the case by the lawyers at the time
I advise my "best endeavours to release from mortgage" clients to see a mortgage advisor every year or anytime their income changes and get a letter that they can't get a mortgage to release the ex and that tends to be enough
Often it's then in joint names until release from mortgage on sale when downsizing when children have left home
Hi FamilyLawSolicitor; no worries; I retired from family law 4 years ago (but I did 25 years at the coalface before retraining in will writing .
I had a similar case years ago where neither party could be bothered to get on with the transfer and the solicitor on the other side left and no one seemed to replace her. I just remember nagging away for the best part of the year until the transfer took place (and the lender stamped the TR1), as I was very conscious that the file couldn't be closed until all of the consent order had been complied with. This sounds similar. It's for that reason that I think there may be a claim for negligence against the solicitors if the OP ends up out of pocket.
Do you much prefer will writing marlow? Is it a far better work life balance? Family law certainly has a tough coalface !
I suppose it depends what exactly happened about OP's transfer. I've certainly had "best endeavours" to release cases where the mortgage company won't release, party retaining house has no chance of getting mortgage in own name and current lender won't allow joint title to be transferred into sole names in that situation. Not much that can be done then except wait for the party keeping the house to be in a position to release from mortgage.
Different to no one bothering to sign a TR1 or matrimonial lawyers not pursing all possibilities on the transfer.
However almost certainly he has no beneficial interest in either situation. OP it's a small headache but not an insurmountable problem if he won't then cooperate on sale/transfer. I was in court on Friday getting a judge to sign a TR1 after months of messing about from the other party!
I was reading down this thread intending to post but see Familylawsolicitor has made the point that I intended to make - that the order served to transfer the beneficial interest. However best get a move on OP - you can't do anything with the property until it's been transferred to you at the Land Registry.
God yes, I run my own willwriting business from home and it's another planet from the stresses of family law 😊👍🏽.
In summer I work in the garden and in winter next to the logburner, never more than 20 hours a week and earn a lot more than slogging away for someone else!
Sorry for the derail OP
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