What order to do things in - transferring property after divorce

[Noregrets78]

Sorry me again! Getting a bit confused now...
We have the consent order back from the courts, i need to transfer the house and mortgage into my sole name and give him a pay out. I've been waiting to see the conveyancing solicitor, only to find out that transferring the mortgage into my name is the bit which takes blinking ages (6-8 weeks?!). I've now kicked everything off.

But - the consent order was signed in court 3 weeks ago (only received about a week ago), and says that it should all be done within 30 days.

XH is becoming increasingly fuming about me not being able to magic the money over to him. Can I crack on with the conveyancing before the mortgage transfer has taken place? As in reality I just want the house in my name before giving him the cash - it's for his benefit to release him from the mortgage rather than mine. Who would care - the mortgage company?

Am I somehow breaking the terms of the Order by taking so long? I'm doing my best!

I've spoken to so many people now about trying to get this seemingly simple task done, my brain is now full and confused.

He's not going to transfer his share if the property to you unless you pay him the money. Treat it the same as a standard sale and purchase.

Are you aware that if you pay late through no fault of his you have to pay interest at 8%?

30 days is a bit quick if you have to remortgage to pay the lump sum to yr ex. You could write in to the court, explain the situation, and ask for more time to deal with the remortgage and pay out.

As collaborate says, think of it as a standard sale/purchase....the signed transfer is held by your solicitor until s/he has the remortgage funds in place. The transfer is then released on completion day on the promise that funds are sent/transferred to the ex on the same day.

If you don't ask the court for more time, interest may well start to run, if the payment is over £5,000 (I think) or interest is mentioned in the order.

Oh good grief, everytime I think I've worked it out something else materialises... It's a lot more than 5k, although interest is not mentioned in the order.

To clarify - I have to complete the full mortgage application process apparently as I'm transferring it from joint names into sole names. It's not necessary for funding the payout, which is coming through the help of others.

...which is why I'm wondering if I can transfer the ownership of the house more quickly, and give him the payout, even though the transfer of the mortgage won't have completed?

I am the opposite side of this and I have been advised that transferring ownership and name off mortgage should be at the same time. There is no way I would want to be financial liable for a property which I have no claim on the title.

Ok, that helps, OP.

You can pay the lump sum before the transfer, and rely on the court order to get the transfer done - if yr ex loses interest once he has the money, the court could always sign the transfer for him.

The transfer and his release from the mortgage should take place at the same time as each other. Whilst you can have one name on the title and two names on the mortgage, you can't have two on the title and only one on the mortgage ... Does that make sense?

Ur ex should remain keen as coming off the mortgage should be pretty important to him too.

To summarise, it's a useful incentive to hold onto the lump sum until transfer, but you still have the security of the court order to force the transfer, and yr ex being released from the mortgage is probably sufficient incentive for him to cooperate.

lonecat I agree with you, but suspect XH wouldn't mind, as he can't get a mortgage himself anyway, and just wants the cash asap. Obviously I would still progress with the mortgage application, but it would mean it doesn't hold up the process by 2 months.

nappa I have had issues with XH in the past, and it wouldn't surprise me if he refused to sign the paperwork once I'd given him the cash. Although I could take it back to court that would presumably incur additional costs, which might end up being more than I would have paid in interest!

If I transferred title into my name before the mortgage... we'd have two names on the mortgage and one on the title, not the other way round. Presumably this would be OK, as long as the mortgage company agreed?

I think I need to either
a) Transfer the title, before mortgage, asap and give him the cash, or
b) contact the court to buy myself some extra time. no idea how to go about doing that!

This would be my advice:

1. Get the transfer drawn up by yr conveyancers ASAP, transferring the title from joint names to your sole name.

1. Offer to pay the lump sum to XH in exchange for his signing the transfer and leaving it with your conveyancers to hold, pending the completion of the transfer of equity (his release from the mortgage)

1. When the lender is ready, you can complete the Transfer and XH's release, then register yr sole ownership at the Land Registry.

No court involvement required, but when I've had to ask the court to sign transfers in the past, it's just been a letter, with no court fee,. Having said that, I always put in a clause in consent orders allowing the district judge to sign if the other party hasn't responded within 14 days of a written request...

nappa what a marvellous suggestion, thank you! I'm thinking I may well go for that.

I have started wondering why I'm the one that's taking on all the pressure of this anyway. The court order says that he shall transfer the house to me. I will give him the cash. I will use my best endeavours to release him from the mortgage. But I will pay the costs and disbursements arising from the transfer.

Presumably that means he's just as able as I am to arrange for the house transfer? As it's his responsibility to transfer it to me?

But then if i'm responsible for the costs that would usually be through me kicking it off.

Hoping also that I'm not responsible for his legal costs of transferring the property.

Grief I thought the hard work was done now the consent order was finally signed off!!

If it's only "best endeavours" then def do it the way I've suggested. It shouldn't be expensive, and whilst he may get his own legal advice on the transfer, it's not essential so you wouldn't normally be obliged to pay his legal costs, minimal though they would be.

The person receiving the property is usually the one to action the transfer, so that's normal enough. Implementation of the order often throws up a few problems, but your case sounds simple, so please don't worry or stress! Ensure your conveyancers appreciate the deadline, then let it be their problem!

brilliant thanks nappa

I assumed 30 day

bloody phone! I assumed 30 days was standard and didn't realise it would take so long! Order states cash to be payable upon transfer of the estate but presumably that wouldn't stop me from paying upon receipt of signed documents in order to avoid interest charges.

You can pay him pre-transfer to stop interest running, but make sure your conv has the sign roped transfer before handing any money over.

Sign roped?

*signed

Doh!

It's 28 days in my consent order as ExH has had nearly two years so far to transfer property and mortgages and has spectacularly failed. The ones I needed to sort were done within four months. So the gloves are now off and he will be paying interest.

Are you doing it with the same mortgage company you're with now? I did & if I remember rightly it was a quicker process cos I didn't need all the searches done again.

redhelen yes same company, but they still say 6-8 weeks as its a full application process.

Still a bit confused about the 8% interest. If the estate hadn't transferred yet, how could I be charged interest on the lump sum I hadn't paid yet? Surely I'd only be charged interest if the estate had transferred and I still hadn't paid the cash?

Is this something which is automatically payable under certain circumstances, or is it something which he'd have to go to court to apply to charge me the extra?

Interest is at the rate for unpaid judgment debts - CCJs

The transfer is the exchange of the house for the lump sum. The exact wording of the order may put the payment, or the lump sum, first, but they are usually done at the same time. If the order requires the transfer and payment within 30 days, then the lump sum becomes due then....otherwise there'd be no incentive on you to pay the lump sum over. If yr ex was refusing to co-operate, then you could use that as a reason not to pay interest - ie you were ready willing and able to complete, but he wouldn't eg sign the transfer. Of course, in RL he'd be nuts not to cooperate, since he wants the money ASAP.

Interest runs by default on amounts over £5,000 in the county court, and I'd enforce by refusing to release the transfer unless interest was added to the lump sum. It could be waived by yr ex, or he may not seek it if he doesn't know about it. The implementation of the terms of the order is not something the court will involve itself in - unless one of you makes an application to the court.

Thanks nappa