Buying ex out + NO clean break order

[SwishSwishBisch]

Asking on behalf of a friend who is hoping to buy ex out of the matrimonial home, which she has remained living in with their two minor aged children since their divorce was finalised just over a decade ago. I’ll try to lay out the basics

• ExH remarried some time ago. Wife is single.
• Property was bought c.15 years ago with an undocumented cash gift from ExH parents as deposit (c. 30%), given to them as a married couple without caveats or any written/verbal terms.
• Couple lived in the home together with their very young children for 5 years until they divorced, mortgage paid jointly.
• Wife took on all mortgage payments after the divorce and has maintained payments as well as necessary expenses for essential repairs etc. solely in the 10 years since.
• ExH name remains on the mortgage and deeds.
• ExH received no money related to the property at the time of the divorce by mutual agreement. He owns no other property and currently rents with his new wife.
• Other: ExH left the Wife with additional credit card debt and an overdraft which she has since repaid. He has also not been paying the recommended amount by CMS for a number of years.

Wife wants to settle things now by paying ExH 50% of the equity in the home at the time he moved out and stopped paying towards the mortgage c. 10 years ago. She has a mortgage offer in place to be able to do this.

ExH wants to wait until youngest child is 18 (another 5 years or so) and then pursue Wife for 50% of the equity in the home at that time. As mentioned at the beginning, he has since remarried since and has made no financial contributions to the mortgage or any other maintenance costs since the divorce.

The hope is that they can negotiate a fair split without involving the court however there’s clearly a big difference between the two amounts involved.

Obviously this is a cautionary tale for never divorcing without a clean break order, but can anyone give even a rough steer on how this type of scenario might be handled legally? Specifically any thoughts on the likely outcome for the Wife.
She has an appointment booked with a family law solicitor but there’s quite a wait and she’s understandably fairly stressed about this in the interim.

He can’t bring proceedings under the matrimonial act as he has remarried. I don’t know if he could issue a TOLATA claim instead?

He cannot make any claim as he has remarried, though he would be able to force a sale as joint owner.

Your friend needs to get this sorted asap, might be a lengthy process.

The last two answers are not entirely correct. If he divorced your friend and ticked the box saying he wanted to apply for a financial order, he can still make a financial claim despite remarrying. Even if he can't, if the house is jointly owned, he still owns 50% of it, so the starting point is that he is entitled to 50% of the equity in the property based on its current value.

Note that, even if he can't apply for a financial order, your friend can. If she did, the courts would look at their finances as a whole rather than just the house. That may be a better option for her.

Thanks for the replies. Hopefully they can negotiate/mediate a workable solution without the need for solicitors 🤞🏻

She's had the benefit of living in the property, enabled by him remaining on the mortgage so 50% of the equity when they split seems unfair on the face of it. Has he got a much better pension than her?

I would see a solicitor and get a full declaration of assets. This is too complicated to agree over a glass of wine and should have been agreed when they divorced.