Can’t afford mortgage on separation.

[Extraplums]

I am getting divorced and have 2 primary aged children and a baby under 1. The house is in my husbands name but I have a matrimonial rights notice on it.

I am not currently working - my husband had agreed to give up the house for the stability of the kids and rent however how would it work in the settlement if I can’t afford the mortgage? He would be willing to pay the mortgage until further date, while renting himself. Can this sort of arrangement be formalised on divorce?

Yes, it’s called a mesher. From bitter experience though men often change their mind a few months down the line….

I know which is why I am looking at getting it formalised.. breakdown of marriage utterly due to him so I just need some time to get back to work and be able to support kids on my own

Does Mesher apply to married couples? I will look into this thank you

Yo won’t get a Mesher order for 17 years (you say your youngest is under 1) - the court looks for a clean break where possible.

IF you did get a Mesher order for a certain period of time, you would be expected to pay the mortgage in full & all associated costs.

If you can’t afford to pay the mortgage - you won’t be awarded a Mesher order.

@NorthernSpirit this is simply not true.

@Boshi seek proper advice as people on here quite often give bad advice!!

@Flowertight - it’s true (I’ve sat in court & heard it from a judge first hand).

She won’t be awarded a Mesher order for 17 years (these are rare now) and if she was awarded one for a period of time she will have to prove / be expected to pay the mortgage.

How do you expect someone to stay in a mortgaged home if they can’t afford to pay the mortgage?

The EH has to house himself & have suitable accommodation also for the 3 children. Do you expect him to pay rent as well as the mortgage on a house he doesn’t live in?

@NorthernSpirit each case is individual. Just because you heard one judge make this judgement doesn’t mean you can advise the op. Mesher’s do exist long term in many cases. And mortgages can be covered by way of spousal support. Please do not give blanket uninformed advice which could affect someone else’s life significantly as it’s not fair.

It’s not impossible to achieve a mesher, nor impossible to achieve an order for ex to have to contribute to mortgage BUT it is highly improbable and IF awarded very likely to only be for a relatively short term eg couple of years

unless ex is very high earner then that becomes even less likely

a 17 year mesher won’t be awarded

Also I am making no judgement on what her ex has to do in terms of housing because I don’t know the details of the divorce. Neither do you.

And meshers aren’t any more rare than previously. H2H

I didn’t want to detail my personal life but it is possible as I have one

@NorthernSpirit is at least mostly right. It's highly unlikely to be awarded a mesher for 17 years, more likely is until youngest is 3. Same goes for spousal support if a high income (over £100k or so under is unlikely). Generally a private agreement is your best option because the courts aren't as generous (I have a private spousal support agreement)

Op
You can usually see a mortgage adviser for free through your bank. Mine was an absolute star.

I only just met affordability criteria- luckily my ex was reliable with paying child support. Apparently she was able to count it or partially was income.

The only people I know who have had meshers last 10 years or so have pretty specific situations eg adapted for disability or have very wealthy ex spouses (as in family money as well as very high salaries). Suggesting it's an option without knowing someone's circumstances is not fair

Even if he will sign now I believe for the agreement to be legally enforceable it has to be seen and approved by a judge. A Mesher for a few years where he pays the mortgage might be an option, whether there's much chance of one depends on individual circumstances and whether the judge thinks that's an appropriate financial arrangement. It might help to show you've thought of future needs and made a plan for when the mesher ends. I wouldn't count it out, but I would be looking at making alternative arrangements and what your options might be there including looking at return to work so as to get a mortgage and use your share of any equity as a deposit.

The major factor is how much does he earn
they will look at everyone’s housing needs

realistically from his wage could he pay the mortgage , child support. ,rent somewhere to provide a home for his kids to come to and live

needs and affordability would be looked at
each case is individual

Thank you all, I think looking at spousal support as a way of indirectly paying the mortgage would be an idea. I do need to get advice but am trying to see if we can agree something first. He is onboard with whatever I suggest (for now)

Even a formal agreement for 3 years would be enough time for me to start working again, also child maintenance to show as income is an idea I will look into too, as then I could potentially transfer the mortgage over to my name which would be ideal

Ex is high earner, I just want to lock down some surety over the next 2-3 years at least until I can increase my own income enough to be financial independent. If he wants to continue paying until youngest is 18 that’s up to him if I cannot get it formalised, it’s the least he owes us

He doesnt owe you for the next 17 years!
you’re unlikely to get spousal
support other than for a few years as well

Not me (although he does also owe me), the children, he owes them a home until they are adults. I am planning to jointly fund their home as soon as I am able but I need some stability for myself and the kids while I do this

Although if he would formally commit to supporting the family home for 17 years that would be ideal. If you submit a financial plan like this that is approved by both parties would a judge accept the plan?

@gogohmm is the private spousal agreement just an informal agreement between the two of you or more than that?

Statistically speaking, Mesher Orders are an extremely rare outcome of a case that goes to court. I think a study done in 2015 showed they occurred in something like 1% of divorce cases with a financial settlement and most of those cases were short term, normally for teenagers to finish their education. That doesn't mean they are never awarded, or never awarded in the long term. @Flowertight must have a case where there is a reason she is incapable of having a mortgage solely in her name that is sufficiently large to meet the needs of her children but this scenario is quite rare in itself these days. Or she agreed in negotiation.

However, there are an awful lot of factors to think about and one of them is indeed how to pay the mortgage in a Mesher Order scenario. Spousal maintenance is rarely an option nowadays. Such is the cost of living that the non-resident spouse doesn't tend to earn enough to be able to afford spousal maintenance nowadays unless they earn well over six figures. Again, that's not to say it doesn't happen all the time by negotiation, but in a court only around 16% of cases have a SM element and most of those are nominal (i.e. about 1 pence a year). However, even where SM is payable, often the recipient is eligible for universal credit and therefore being paid this money for the mortgage reduces their UC claim £ for £.

Consider this scenario. With a one year old the OP won't be expected to work but say this is in 3-4 years time. The OP will be expected to work part time and earn at least minimum wage, perhaps bringing in £1k a month. Let's say the ex is on £100k, so paying about £1.3k a month in CM for the foreseeable future. The OP can also claim about £700 a month in UC and about £200 in child benefit, so a total income of £3.2k. The OP's ex meanwhile will have an income of about £4.2k after paying CM. A court could award some SM but the first £700 would just wipe out the UC claim. By that point the OP would still be on £3.2k and the ex would be on £3.5k. However, the ex is likely to have much higher housing costs that keep rising, because they are unlikely after paying CM to have enough mortgage capacity to be both tied to the FMH and to buy another property so further SM is extremely unlikely. In other words, SM isn't really an option to pay the mortgage.

What's actually more realistic these days is a charge back. This is where the OP would have to get her own mortgage and pay it in full but the ex might have to wait for his capital with a charge on the property until a trigger point. She will be expected to downsize - within reason - to achieve this but will most likely get most of the equity from the FMH. She will also be expected to maximise her earnings to do this, although no one is going to expect someone with a 1 year old to work right away.

It's never really possible to predict what a judge is going to do but I would estimate a Mesher Order for 5 years with a 70/30 split could be a likely outcome in a court.

he owes them a home - yes- but that doesn’t mean legally it morally he has to fund one for you, if you think like this you’re going to bd very disappointed and it’s going to be very costly

if he did agree ( which he would be mad to) by way iof mesher you will owe him loads of money in 17 years so it’s not always the right long term solution

One outcome that seems to have emerged from the big interest rate rises has been negotiations for a Mesher Order where the NRP does contribute to the mortgage. However, the terms are that these payments are a loan to the RP that must be returned before the rest of the equity is split, normally 50/50. With my finance head on I know this will have huge long term problems for both parties, but a lot of people in divorce will insist on making emotional decisions for the children in the short term rather than plan for their family's long term future.

I was adamant in my divorce that all ties must be severed, although I had a risk that my ex-wife had a tendency to get into debt and a job I would lose if I defaulted on, for example, a shared mortgage. I felt it necessary to sever all ties in order to ensure that I could reliably pay child maintenance therefore. But there is also the fact that two parties buying smaller properties immediately can lock in those prices; who knows how much more that would cost a decade or more down the line?

thanks all, it’s given me lots of avenues to go down.

Re what he owes me, legally and morally he owes me in fact more than 17 years of mortgage payments and there’s a complicated back story which is why he is willing (as I said for now before the fog of time and denial descend on him) to support the family home fully until the youngest has left home. I am willing to take up joint support once I am able as I know 17 years is a long time and a lot can happen in that time.

I just wanted to know if the situation as it stands, if we were to privately agree something that looks slanted towards me, if the judge would make it a court order without looking at whether it was ‘fair’ or not. For instance if we were to agree he keeps his pension but continues to pay the family home mortgage, with a plan to sell in 17 years time and split the proceeds.

He can just about fund a second much smaller place to rent, his income will go up.

Thank you @BetterFuture1985 those figures are useful to think about re what would look like a fair split.

I spoke to my solicitor about something similar last week.

She told me that a judge will need to look at an agreement and sign it off and if it looks particularly unfavourable for one party can refuse to sign it off. However, they had one instance in the last couple of years and each person from the couple divorcing had to write a letter explaining the reasons for it, and the judge did then sign it off.

I think you are bonkers or maybe very naive if you think a judge will agree your stbexh pays both the mortgage for you and children and rent for himself. It won't happen. Your stbexh may be feeling guilty now and might agree to pay you spousal maintenance for a couple of years until your almost 1 year old is in nursery but nothing to stop you putting baby into a child nursery now and you going back to full time work. Your stbexh will likely pay child maintenance based on his income. It is based on how many nights the resident parent has the children overnight. You can use CMS calculator to work out how much he needs to pay. He might agree to pay a little more. Most likely the house will be sold and equity shared but not necessarily equally. You might get a little more equity. Then you either buy again on your own using your equity as deposit or you rent. You will most likely be able to claim UC with children and get a housing benefit if you rent. The court will consider your stbexh's ability to start a new life too including the possibility of him having a new relationship and the ability to accommodate himself with bedrooms for his DC to sleep overnight too.

If it is a private arrangement, he keeps his pension and the amounts he has to pay towards the FMH are not onerous or impacting his ability to house himself, then a judge will probably sign it off. From a judge's perspective their priority - after the welfare of the children with both parents - is to find a settlement both parties can live with so that they don't litigate repeatedly.

One thing that does worry me about your posts though are your suggestions that he "owes" you and this is "legally and morally." Being angry with him is one thing but if in any way you are putting him under duress to achieve this settlement (e.g. through blackmail, emotional abuse, contact arrangements etc) you must understand that this will likely unravel once he sees a solicitor who can advise him. He will need his own legal advice because with your attitude, a solicitor is also going to be unable to draw up a settlement for both of you, there are clear and obvious conflicts of interest between the parties here.

Why should he be in a much smaller place ? What childcare arrangements will be be having? How often now, and as they grow will he be having them?

iys difficult to understand your comments re legal and moral
obligation without knowing what you refer but in reality that probably won’t materialise. He’s also not guaranteed to increase his income . You will be expected to work when your youngest is older. You will, if got to court, be expected to sever financial ties as quickly as is possible
why would you want to rely on him paying a mortgage ? What if he was sick or lost his income etc and suddenly you’re homeless be the can’t pay ?
17 years is way too long to expect him to tie himself to you in that manner