Coming off a joint mortgage.

[MarciaClark]

I rang CAB yesterday and they were not able to help and advised to go to a solicitor. I am going to book an appointment but I would be interested to know if anyone else has been through a similar scenario?

DH is still named on the mortgage he has at his former marital home 10 years ago. When DH divorced his ex he was happy for her to have the house on the condition that he is removed from the mortgage and the deeds and all associated bills. The judge agreed that in court and ordered her to remove him from the mortgage etc. This was quite a few years ago now. Anyway she took him off the deeds and all of the bills but has refused to take him off of the mortgage. He doesn't pay it and hasn't paid it in 10 years. DH has no access to the house - no key etc. He rang up the bank and made enquiries as to how long it would take for him to come off of it and the bank confirmed that his ex has made no effort to take him off and that because it is a joint mortgage then they need both signatures to take him off. The bank made enquiries with her and she told them to get lost she will not take him off because it would make life difficult for him to get a mortgage in the future.
So here it is 10 years later still named on her mortgage and her still unwilling to take him off. She pays it all herself and has never defaulted on a payment and she can very much afford the remaining balance on the mortgage. It did prove difficult for us to get a mortgage together because he is still named on the other one but because we can prove he has never paid it in 10 years then we were able to eventually secure a mortgage for our house when we got married.
If one party is unwilling to take the other off despite a court order being in place does DH need to take her back to court to enforce this?

Best thing would be for him to action it with mortgage company himself, get all the forms etc and write to her formally asking her to sign them.

But it's not just a question of forms, she will need to demonstrate to the mortgage company that she can afford to take over the mortgage herself. The fact that she's been paying the mortgage doesn't necessarily mean that she can do it in paper.

The other thing is, have you checksed whether he is still on the deeds to the house? because most lenders won't consent to the transfer of the house to one person whilethe mortgage is in 2 names, and there is normally something written onto the documentation ot that effect, so that the Land Registry can't register a transfer into single names without the written consent of the lender.
Dh would also have had to sign a tax form, I think, so that Ex could benefit from the appropriate exemption.
I'd get a copy of the current title from the Land registry - you can do this online for less than a fiver. Then you can see where you stand.
But in answer to your original question, if she won't comply with the court order, then yes, go back to court to get the order enforced.

His name is still on the deeds I would have thought.
If his name is on the deeds and the mortgage I would ‘motivate’ her to agree for him to come off by pointing out that the property and the equity she has been building up could be considered his asset?

Thank you for replying so quickly. Delphinium you have raised the very valid point about land registry - DH stupidly signed the forms to have it transferred into her name alone on the deeds before dealing with the mortgage. As it stands at the moment he has been off of the deeds for 10 years and the deeds are in her name alone and we have solicitors paperwork and land registry documents to prove that. Although I don't believe we have anything in our bundle of documents about tax though.

However the mortgage is in joint names with only her paying it. I do know that on paper she can afford it as we have already had confirmation of her earnings from the divorce on the clean break forms where you declare your earnings. Our mortgahe lender even contacted her and offered her a remortgage into her name alone paying £150 less a month and what she's currently paying and knocking a good 6 years off the mortgage to and she told them to get lost as well.

Then you'll need to go back to court.
You need to write to her first, telling her that she has until x date to do it, failing which you'll enforce the order.
It would be best to get legal advice but you can do it yourself - I've found the courts are quite helpful.

Thank you, will definitely give it a go. We will go to a solicitor for help but be interesting to hear anyone's experiences of being in a similar position.
It beggars belief that she thinks he will happily sit on her mortgage for the next 20 years knowing full well he isn't paying it and will not pay it. So it's not like there's any financial security there for her.

yes you will need to get the court to order it and probably submit to them lots of evidence her income is enough, the lender would consent to her being removed and that her lender says she has refused to remove him. perhaps write to her saying you will be applying and also asking for the costs of the application and if instead she signs the forms within 2 weeks then you will not make the very expensive court action for which she will be likely to have to pay.

I doubt a judge ordered her to take his name of the mortgage, since she has no capacity to simply do that. The mortgage company would have to agree to her taking out a mortgage in her name only, and if she didn't have the means to do so, they would not release him from the mortgage.

He took out the mortgage, he is jointly and severally liable for that mortgage.

So much that is simply guesswork has been posted on this thread. If you’re going to guess, please make it clear it’s a guess.

She will have undertaken to use her best endeavours to obtain his release. That means applying for a new mortgage in her own name (either with the existing lender or a new one). Seems like she’s never applied. If that’s because it’s always been pretty clear she’d be knocked back there’s nothing that can be done. If she might be able to get a new mortgage a judge would want to enforce the undertaking.

Thanks for your replies.
Goodgirls - the judge has ordered her to release him from the mortgage, deeds and all financial liabilities such as bills etc. We have the signed court order and all solicitors paperwork also confirming it. We have it in writing from the bank that they are aware of the order, it is "most unusual" as they put it that he is off the deeds and still on the mortgage but that if one party will not co operate then there is nothing the bank as the lender can do. They also confirmed on writing that they will not pursue him for the debt if his ex defaults on payments due to him.

Collaborate - if it is found that she cannot on paper afford this mortgage (she earns 40k and mortgage is now down to less than 100k) does that mean DH has to stay on this mortgage regardless?
She has most definitely not used her best endeavours to apply for a mortgage or to re mortgage her house, she signed the order and then did nothing.

Collaborate - if it is found that she cannot on paper afford this mortgage (she earns 40k and mortgage is now down to less than 100k) does that mean DH has to stay on this mortgage regardless?

Yes, but given those figures, and assuming she's not got the worst credit rating in the world, the court will accept that there is no reason why she hasn't been able to get him off the mortgage.

Thank you - much appreciated

I presume this is in the UK? I am in Ireland and a similar situation whereby my ex has no entitlement to my home yet the bank refuse to remove him from the mortgage. A judge ordered that when the bank have decided they will allow his name to come off the mortgage that a transfer of equity form will be signed by both parties and he will be relinquished from the loan. I have tried repeatedly to get his name removed and finally the bank are coming around to the idea as I have a decade of payments behind me. If things are different in the UK where somehow his ex has all this control then I suggest you get your dh to contact the bank himself and request a transfer of equity but I find it hard to believe that his ex is the reason this has not yet been done. 100k of a mortgage is a substantial amount and there is no way that the bank have told him they will not come after him if she defaults on payments because the reason they normally refuse to remove a name is on the grounds of security that they can go after one party if the other refuses to pay.

The banks are very keen to keep people on. Sometimes if you can find an alternative - new high earning husband, rich relative who will go on as a new co-debtor they are more likely to agree although it sounds from
what has been said the lender is likely to agree and the income would cover a £100k mortgage and the ex wife is just being difficult for the sake of it.

Hi Jasperoonicle,

The transfer of equity was done years ago and I have the signed forms infront of me alongside solicitor correspondence confirming it. I know it does sound strange but I do have the letter from the bank confirming that they are aware he does not pay the mortgage and that the property is no longer in his name. The same letter confirms that they will pursue her only for the debt and seek repossession of the property due to the court order stating she must remove him from all financial liability after reviewing both of their financial situations. The direct debit comes out of her account alone and has done for 10yrs - a bit like your own situation. I think another trip to the bank and the solicitor will be in order.

I will be honest it really does sound unbelievable to me! I am not doubting you, you hardly came on here with a bull story but it is crazy if that has all been done and his name is still on the loan. Normally, at least in Ireland, you have to remove them fully from the loan before the transfer can be done and name removed from deeds. Get him to contact a solicitor and outline all of this. That would be madness to have him on a loan for the next how many years when the transfer etc has gone through. Do update us by the way. I am really interested in how this pans out for you both and best of luck :)

Is the mortgage lender aware he's been taken off the deeds?

Coll, above, is right that these kinds of orders will usually say the person has to try to take the spouse off the mortgage, rather than guarantee they will as it is so hard to get them off. Do we have the exact wording of the court sealed consent order because sometimes you might think it says must remove but instead it is not so legally definite. I agree with J that usually on the loan and on the title usually go together. It is an issue with parents helping children buy property in the UK at present now that if it's a second home (which it will be for many parents) there is 3% extra stamp duty - the lenders force the parent on the title (or have until recently ) rather than just an old fashioned parental guarantee, which means even if you are given 1% of the title as a parent you are still on the title and your child has to pay a lot of stamp duty land tax in England. I think the lenders like all the people on the mortgage also to be on the title. If I were a divorcing person I would not want to be off the title and would use not coming off the title as the lever to persuade the other person to take me off the mortgage.

Jasper - I completely agree with you it should be done the way you guys do it in Ireland. I know the whole situation sounds crazy but it is sadly true and I have all of the court and solicitor documents to prove it. I will update in due course though thank you for all of your advice.

Numptynuts - yes the lender are aware and have had sight of all the documentation and they described it as "most unusual".

Xenia - thank you for replying, it isn't so much about using it as leverage or persuading it is a case of the order States he is to come off the mortgage, the deeds and all associated bills. He signed all of the paperwork for the deeds and transfer of equity etc believing that the next document to be signed would be bank paperwork but it did not materialise

This all sounds very bizarre! Why would she even WANT to keep him on the mortgage if she can easily afford to get a mortgage in her sole name, he doesn’t pay anything towards it and they’re no longer together?

Haven't read the whole thread but this involves conveyancing the same as when you buy or sell a house. The mortgage is a loan with a charge against the property allowing the bank to sell the house if the mortgage isn't paid. Both parties on the mortgage are liable for repayments even if one is not currently paying.

Your dh needs some legal advice about how to finish off the process that was started 10 yrs ago. It will involve exw becoming the sole owner and sole mortgagee (mortgage holder).

Conveyancing is usually done on a fixed fee these days so shouldn't be expensive. Would have thought first port of call if everyone is in agreement is to find a solicitor to act for dh, find out what is needed if this is all done by consent (ie everyone is in agreement and it's just not happened because exw never got round to it).

If she isn't going to co-operate that is different & you'll need a family solicitor first.

Until he's off the mortgage tho he's linked to her financially so if she has credit issues they will affect him too.

Thank you lizzy - this has always been a concern of mine as both dh and i have good credit scores and to be fair, so does she. But one of my concerns is that if for any reason she gets into debt then they are still linked financially and that may in turn affect any future joint application we may want to make.

It sadly is not a case of she did not get round to have him removed, she is point blank refusing to be deliberately awkward. I didn't meet dh until a few years after this had all happened and at times I can't help but think "just get over it and move on and stop being so bitter, it's been 10 years."

Lottie - DH and I are asking the same question! He pays her child maintenance and has done from day 1 of their separation but pays nothing towards the mortgage. Bizarre isn't it?!

The bottom line if she will not do the paperwork when told otherwise she will face court, you will have to make a simple court application which perhaps could include a power of attorney for the husband to act on behalf of both of them in dealing with the lender and perhaps could say if the exw refuses to sign papers he can sign on her behalf even and with a very strict deadline and perhaps when applying to court annexing every paper fully completed that the lender requires to have signed in order to take the husband off the mortgage and a new letter from the lender saying now as much as before they consent to his being taken off.

Xenia - yet again I need to correct you because you’re guessing, and getting it wrong. The court cannot apply for a mortgage on behalf of a litigant.

I didn't mean that. I said the judge might be able to order that the husband could sign on behalf of his wife by way of a power of attorney. If I implied otherwise I am wrong and it was getting off the mortgage not applying for one. Akin to where a house is to be sold and the court orders one side not the other to show people round.

You’re still wrong. The court cannot authorise the husband to apply for a mortgage on behalf of the wife.

This is getting ridiculous.