Sale of the marital home

[missduff]

My DP split from his wife 2&1/2 years ago and at first she left him, said that she wasn't bothered about the house, didn't like it and left him struggling to pay the mortgage by himself and she rented a house of her own.

After about a year of him struggling with the bills he moved back in to his mum's and was renting the house out for considerably less than what he was paying on the mortgage.
When his ex wife heard how little he was renting it for she convinced him to rent it to her, well at first he said no but she served notice to the tenant herself and moved herself in, DP just went along with it.

He is now paying £850pcm on the mortgage and she pays him £450pcm, the rental income would normally be about £600pcm but he agreed to her paying him less rent as she said she would spend some money on it to increase its saleability. Personally I think it is more likely that she's just going to keep all the receipts for the work to claim more equity in the house.

The house is all in his name, she's not on the mortgage or the deeds but they were married so clearly she is entitled to some equity which DP isn't disputing.

There is also a loan which DP took out for home improvements, again this is just in his name.

We have recently found out that we are now expecting a baby so he needs to sell the house ASAP, he currently can't afford to contribute anything to me, I pay all the bills as all his wage goes on the mortgage, the loan and the child maintenance he pays her. So the house needs to go and he needs to pay off the loan with some of the equity, otherwise we are screwed and won't be able to afford the house we live in now just on my maternity pay.

My only concern is that his ex wife is going to make it difficult to sell the house, can she stop the sale of the house in any way?

Also as the loan which DP has was for home improvements can this be paid off out of the equity before it is split between them or does he have to pay that out of his half of the equity?

It is best not to divorce until financial matters have been signed off. IF with the child maintenance his wife can afford to pay the mortgage then a judge is likely to rule she can stay in the marital home as long as it isn't seen as too big for their needs. Her husband is sorted accommodation wise in the eyes of the court because he lives with you. It is unlikely that a judge would rule that more than 1/3 his salary be paid over in maiotenance for wife & children.

Hopefully they can come to an agreement amongst themselves but if she doesn't accept the idea of moving it could be a long haul.

Ok, then yes - fingers crossed they can reach agreement, but she could certainly stop the sale of the house if they can't.

Yes fingers x for the weekend.

If she does get awkward, despite the good offer your DP will make to her, I think a solicitor would advise her to accept his deal as a court could not expect him to pay ALL his salary to support the house and the children, with no provision for you and DB. As RedHelen says its unlikely a judge would award more than 1/3 of his salary to the ex. Hope she is a sensible lady!

Good luck.

Well, I am going to disagree with the previous posters whose legal knowledge appears to have come from watching the Jeremy Kyle show.

I think he should issue divorce proceedings sooner rather than later. There is no need for it all to become nasty, if they have been separated for 2 1/2 years then he can issuse a petition on the basis of 2 years separation with her consent. Presumably she would consent to this?

With respect, it IS best to issue proceedings before the finances are sorted out. If an agreement is reached amicably then this needs to be set out in a Consent Order to be lodged at the Court for approval at which point it becomes legally binding. The Court does not have the jursidication to make such an order until Decree Nisi has been pronounced therefore it would be sensible to get the ball rolling with regards to the main suit (divorce). If the OP's DP's wife will not consent to a sale of the former matrimonal home (FMH) then it is in his best interests to issue an application for Ancillary Relief (financial aspects of divorce) so that hopefully in due course he will get an order for sale. I wouldn't say it would take 2 years as has been suggested, one year (maximum) hopefully is more likely but timescales do vary depending on the Court. She CANNOT stop the sale of the house forever.

If a Consent Order is reached amicably in a way which suits both parties as specified; house sold; debt paid off;credit history clean for both parties, then lodging this with a court is an even cheaper way of getting legally binding consent to dispose of the property in a mutually acceptable way, than paying a solicitor for this.

Presumably it forms part of the DIY divorce and shouldnt significantly delay matters?

Sounds very reasonable, but ultimately the outcome would be no different than paying a solicitor to draw up an agreement, only much cheaper! OPs DP should look into this. If the exW gets stroppy then it is a whole new ball game but cross that bridge when its reached.

MOSagain not she cannot stop the sale of the house forever - but she can before any proceedings begin.

I was advised by my solicitor NOT to divorce before the finances were agreed. I also know that the welfare of the children is number one priority & if it goes to court it is unlikely there will be an order made for its immediate sale on the information given here.

Best way is to try to mediate between themselves.

I agree with spottydog that people are getting confused here. The problem is, often people just remember what they were told in THEIR case (or a friend's) not realising that all cases are different. I would always tell my clients not to apply for DA until finances were sorted as would most family lawyers.

Agree with MOS. Also, you can't draw up a financial consent order without getting a solicitor to do it for you. It would be like expecting someone to perform a minor operation on themselves. Easy for the lawyers, but would anyone here not a family lawyer know what to put in the order?

I usually tell clients that it would cost them around £500 to get a consent order (assuming I'm not asked to thoroughly vet the settlement), with whatever on top for the divorce itself (usually £1200-£1500 incl vat and court fees (approx£400)). It's not too much compared to having to sort it all out at a later date.

collaborate I beg to differ. I think the charges you have quoted would be far cheaper than having to sort it out later when its all gone pear shaped. How often do we see that?

In my local Court when we got a new DJ he rejected at least 75% of Consent Orders in the first instance, often for minor points such as the M1 not being completed correctly. It was his 'thing' and a lot of family lawyers started issuing in a different CC just to avoid him. I find it very hard to belive that a Consent Order drafted by a layperson would satisfy him or many other DJs. This is one area where instructing a family lawyer is money well spent.

OP I think you and your DP would be wise to listen to MOS advice. The point is surely that the divorce will not be granted while there is no agreement on parenting and finance. So the nailed-down agreement on these issues has to come first, and it has to be acceptable to the court before a divorce is granted.

The OP is pregnant and struggling financially on mat leave. Her DP has a large outstanding loan and a hefty mortgage, and very little left from his monthly salary. Hence the above difficulty with the house and their wish for a legally binding, amicable, mutually satisfactory agreement.

Would the DP be eligible for legal aid as they seem to be in financial straits already?

OP, how about an update?

I was just re-reading this thread. He took out a loan, in his own name, for home improvements - but is there any indication it has been spent on the home?

He was already renting the house out for a sum considerably below the mortgage when he began living with his mum, so no loss there with the ex moving in. He is now living rent free with his mum. He seems to have done nothing about ending his marriage, the mortgage, the loan or anything.

OP is now pregnant and suddenly starts to worry about money, realising she's effectively a single parent.

Must confess, I'm a little bemused by it all.

That's correct Spotty.

From personal experience, if the loan was secured on the house, the conveyancing solicitor would pay the loan out of the equity before handing any money over to the home owner or whoever benefits from the sale. Around 6 years ago, but I've no reason to expect it to have changed.

Unsecured loans are a different matter of course.