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Confusion around mortgage

Posted by Nona123 
Confusion around mortgage
February 06, 2021 02:15PM
Hi I wonder if you could please provide guidance.

The background situation is as follows. My ex partner lives in a house which we jointly own. In a few months we will have lived apart 2 years and be filing for divorce on these grounds. My ex partner wishes to remain in the property, changing it to a sole mortgage and buy me out.

We're confused about the process. Does she apply for transfer of equity to sole mortgage and remortgage to buy me out now? Or do we have to wait until after the decree nisi and then is there a different process to follow? Such as getting multiple valuations?

The reason I ask is I am currently still paying half the mortgage and my wife has requested this continue until the house is still soley in her name. Google says that decree nisi can take up to 3 months and decree absolute can take up to an additional 10 so I want to understand the options. Any advice would be welcome thankyou.
Re: Confusion around mortgage
February 06, 2021 06:38PM
In practice the only way you can settle the financial issues arising from the marriage once for all is by obtaining a court order within the context of a divorce. This can be done by agreement but no such agreement (whether agreed or not) can be approved by a court unless and until there is decree nisi in divorce. Therefore the divorce comes first or, at least, a divorce has to be progressed to at least decree nisi before you can formally and finally settle the financial issues once for all.

Under NO circumstances should you simply transfer your interest in the property to your wife except within the context of a court order obtained in divorce proceedings. If you ignore this advice you risk two consequences which are very foreseeable:-

1. Your wife might not consent to a divorce based on two years' separation and there would be nothing you could do about it.

2. Even worse, if and when there is eventually a divorce your wife might in those proceedings (and very likely would) ask for more. After all, she would already have the house. She would have nothing to lose by asking for more (and perhaps getting it because who knows what the circumstances would be at that time).

It must be done in this order otherwise you run a big risk.

As to continuing to pay half the mortgage, is this wise? For a start for as long as you do this your wife has no reason to hurry and if she thinks she is going to get the house every month more that you pay benefits her and it money from your pocket you will never get back. There is another point. She is living in and has the sole benefit of a property jointly owned by you. Why should she not be paying you rent for her use of your share of the property? The mortgage can be considered as the equivalent of rent. If she has the benefit of living in the property and you do not then why should she not pay the mortgage?

This is, of course, an argument from principle. There may be other factors which mean that you should be paying your wife maintenance (from which she can pay the mortgage). For instance, if she has a low income, you have a high income and she has children dependent on her. You do not mention any of this type of factor but where such factors exist they can have a significant effect.
Re: Confusion around mortgage
February 06, 2021 07:44PM
Thankyou for your very detailed reply. It is extremely helpful.

To clarify, (and I understand this is generic advice here) do you think it is best to file for decree nisi and then consult a solicitor as to the best way to get the money from my share of the house? I suppose I was looking to expedite things thinking she could apply for transfer of equity now, but if this is not advisable I will hold off.

Furthermore, re: the point with paying the mortgage I have done this to keep things amicable but also for fear of bad credit. I am concerned if I don't pay and she defaults it will negatively affect me (and the potential for me to buy again), however looking at the potential that it can take up to 10 months to obtain a decree absolute, I am concerned I will be paying the mortgage for another 10 months, plus the additional rent on where I live now. What is your advice on this.

Thank you again for your help and guidance on this, it really is a great help.



Edited 1 time(s). Last edit at 02/06/2021 07:46PM by Nona123.
Re: Confusion around mortgage
February 07, 2021 09:31AM
>>To clarify, (and I understand this is generic advice here) do you think it is best to file for decree nisi and then consult a solicitor as to the best way to get the money from my share of the house?

You do not actually need to wait until decree nisi before you try to get financial issues settled. Typically that takes time. However, you do need to issue a divorce petition sooner rather than later. In the interval it takes to get decree nisi you can try and get the financial issues resolved so that as soon as decree nisi comes around you are in a position to file a financial settlement with the court for approval.

>>I am concerned I will be paying the mortgage for another 10 months, plus the additional rent on where I live now. What is your advice on this.

I have given you my advice on this which was clear.
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