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Divorce/separation

Here you'll find divorce help and support from other Mners. For legal advice, you may find Advice Now guides useful.

Original poster

Mortgage covenants and divorce - please help!!

27 replies

Whatevs80 · 23/11/2016 08:39

Hello.

I'm wondering if anyone can help;

Divorce papers recently submitted and legal advice sought. In brief, we have a jointly owned house and two young DC.

All options discussed with solicitor for a clean break eg buying ex out or selling and dividing equity apparently leave me with the problem of removing my STBXH from the mortgage covenants.

I have a rough understanding of this; but has anyone got experience of this; HOW do I remove him if we sell and divide or if I pay him off?

We are fortunate to have a large amount of equity owing to a critical illness payout a few years ago, it just seems such a shame that we could not achieve a clean break in this situation?

Mortgage lender is Nationwide; seen advisor, she had no clue what I was talking about Confused

Anyone?!?

Thank you

OP posts:
atticusclaw2 · 23/11/2016 08:42

Nationwide had no idea what you were talking about? That is hard to believ.

Your language is a little odd "mortgage covenant" but surely they mean that the house will go into your name and you buy out your XH but he then wants to come off the mortgage and so you need a mortgage in your sole name.

atticusclaw2 · 23/11/2016 08:43

Speak to a solicitor

Original poster
Whatevs80 · 23/11/2016 09:04

I have woken to a solicitor, as outlined in my posts she's suggested it will be difficult for him to be remove from the covenants even if it's transferred over or sold.

And nope, Nationwise didn't know. I'm not in the habit of making things up...

OP posts:
Original poster
Whatevs80 · 23/11/2016 09:05

spoken.Nationwide

OP posts:
atticusclaw2 · 23/11/2016 09:11

Well to be fair she might not have had clue what you're talking about. I''m a solicitor and I don't know what you mean by "removing him from the mortgage covenants". Its unusual language to use and I'm not sure it is actually what you mean.

I think you mean you need to take him off the mortage because he will no longer own the house? That's down to the building society and is likely to depend on how much the mortgage is and what your income is. If you earn enough to take it on on your own then they will arrange for it to be transferred to your sole name (or it might require a remortgage). If not then you have to sell the house, take on a new smaller mortgage and buy something else .

A "covenant" is a contractually binding promise. I don;t think that's what you mean. If it is what you mean then you need to give more detail about what the covenant is.

AnchorDownDeepBreath · 23/11/2016 09:17

I was going to say what Atticus has. Convenant isn't the word you mean, I don't think, and that will be confusing people. If you do have a convenent concerning him and the mortgage, you're going to need the wording and possibly specialist advice.

Original poster
Whatevs80 · 23/11/2016 09:33

Thanks...

There is a paragraph outlining that the courts could order a sale of the property and award me more than 50% share ...

Then the phrase in the solicitors letter is "it seems to me that you will not be able to secure his release from the covenants and if he remains bound by those covenants he is unlikely to be able to raise a mortgage in his name..."

OP posts:
atticusclaw2 · 23/11/2016 09:43

what covenants?

To be honest you need to speak to your solicitor again and explain that you dot understand.

atticusclaw2 · 23/11/2016 09:43

don't

Original poster
Whatevs80 · 23/11/2016 11:34

Having spoken to a friend that's been trough this; we've deduced that I won't be able to transfer things over to me without a guarantor, think that's what they're getting at. This presents a problem Sad

But yes, will clarify with solicitor

OP posts:
atticusclaw2 · 23/11/2016 11:36

If it's about you taking on the house in your sole name. It will all be income dependent.

It can be very frustrating, particularly when there is a lot of equity in the property but the majority of people have to sell up and live in smaller houses in this scenario.

TheFormidableMrsC · 23/11/2016 11:41

OP, I went through ancillary relief proceedings with my ex-H and was awarded 100% of the marital assets (unusual I know). However, while I "own" the house and all of the equity is mine, there is a mortgage and my ex left me benefit dependent therefore he is not able to come off the actual mortgage, nor would our lender allow him to come off the deeds. When my ex-h queried this with the Judge at a further hearing following issue of the order, he said he can make the orders but he cannot force a mortgage company to remove somebody from a mortgage. It was just tough. So, it will largely depend on your financial circumstances and indeed the rules of your lender.

Wallywobbles · 23/11/2016 15:16

I think you might have to pay off the old mortgage with a new mortgage in your sole name. I'm in France and that's what DP has had to do.

TheFormidableMrsC · 23/11/2016 16:04

Wally, the lenders will only agree to this if the OP has the income to cover it...in the UK they would generally transfer the mortgage where this is possible rather than take out a new one.

Moanranger · 29/11/2016 01:49

We had a lot of difficulty in getting a property transferred. My ex bought out my share, but it was months of hassle to get both the land registry & mortgage lender to transfer everything. Just an inherently inflexible system, I think.

MooseBeTimeForSnow · 29/11/2016 02:25

Whilst his name stays on the mortgage you are both jointly and severally liable. So, if for some reason you couldn't pay the lender would expect him to pay in full even though he wasn't living there and had technically absolved himself of all responsibility for it.

Wolverbamptonwanderer · 29/11/2016 02:31

Without meaning to sound unsympathetic, if you can't afford your own sole mortgage ok the property why would they take him off?

If you can remortgage alone this is very straightforward

FV45 · 29/11/2016 05:50

Why do sols use such weird language?
I had to ask mine quite a few times what things meant, and I'm a reasonably intelligent person.

Anyway op, does your sol have training in mortgage transfers? I think that would be unusual for a family solicitor.

It's up to you to go to your mortgage lender and find out whether either you or you partner can buy each other out. When there are children involved and one person can buy the other out I think I would be unusual for a judge to force a sale.

As for doing it, I just bought my ex out. Got mortgage approved, he had to sign to transfer deeds to me which he delayed and delayed...twat then he got his money and I'm bloody broke but do have a house

Movingonuppppp · 29/11/2016 07:08

theformidable so if you have been awarded 100% of the house but his name is on the deeds doesn't that mean that he could on some technicality have some say over the equity you make on the house?

TheFormidableMrsC · 29/11/2016 09:19

Moving, no because I have an order saying he has no claim on it and it screws him really until I sell the house as he remains jointly and severally liable.

Movingonuppppp · 29/11/2016 09:22

If he has no claim then he would equally not be liable if you default? I ask as my husband is in the same position with his ex. His name remains on the mortgage for as long as she lives there, she gets all profit but equally if she defaults it would be her house they take. Out of curiosity why do you want to be in that position? Wouldn't you rather sell and buy somewhere outright that just has your name on the deeds?

UpLighter · 29/11/2016 09:57

You need to ask nationwide for a 'transfer of equity' to your sole name with the removal of your exh from the mortgage liability and deed.
They will understand that. If not complain.

TheFormidableMrsC · 29/11/2016 10:24

Moving. Well yes of course, that's the downside of it obviously. I didn't want to be in this position at all. I was forced into it. Long and complicated backstory and a divorce that took more than two years to settle, alongside 10 court hearings. Given the circumstances my husband left me in, it was the best I could get. He walked away with exactly nothing. So, yes, I would rather sell and buy outright, but I have two children, one with SEN at an excellent nearby school, aged 5, the other at college in London who will be heading off to university. When she does that, I will sell, move and buy outright. At the moment, I am benefit dependent because my husband chose to wipe me out financially, sack me from our business and spend every penny we had on entertaining OW. Including our selling the children's shares. His financial conduct was so appalling but I was very lucky to have a fantastic judge. This was the best outcome I could for given the situation.

TheFormidableMrsC · 29/11/2016 10:25

hope for

Movingonuppppp · 29/11/2016 12:34

Completely not judging formidable, it sounds awful what you've been through. My husbands ex by no means went through what you have. She is completely financially stable but I have always been intrigued as to why she chose to stay in a house attached to his name that she can only really afford due to maintenance he pays her. They have children together of which the youngest turns 18 in January. I assume one day she will sell but she has made no attempt to date. The house is also on an interest only mortgage so it's never decreasing she is basically renting. I find it an odd situation (in her case).

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