Protecting the family Home: orders for sale, bankruptcy and divorce by Ellie Webster

Divorce|March 2nd 2012

In these tough times, cash-strapped spouses may find themselves at the receiving end of an application for an order for sale of the matrimonial home, made by a secured creditor such as a bank.

Where the debtor spouse is not bankrupt, the court must consider the statutory guidelines set out in Section 15 of Trusts of Land and Appointment of Trustees Act 1996 in deciding whether or not to make an order for sale. These guidelines provide the debtor and his or her spouse with some “teeth” with which to challenge the application if the property is jointly owned.

What the court must consider

Firstly, the court should look at the intention of the parties and the underlying purpose of the trust of land. The parties have the option of using the argument that, where the intention was to provide a matrimonial home and that purpose remains (i.e. the parties have not separated), the application should be refused or the order for sale postponed at the least. This is even more likely to be the case if a couple has children under 18 who live with them. The court took a more generous approach in the 2004 case of Edwards v Lloyds TSB Bank Plc [2004] EWHC 1745, noting that even though the couple’s marriage was over the “purpose” survived because the wife was still living in the house along with the couple’s two children. The sale was therefore postponed for a period of five years until the daughter reached the age of 18.

Other factors that should be considered by the court include whether there are other assets available to pay off the debt, the amount at stake and the likelihood of repayment – as well as the availability of alternative accommodation. While the court would expect that an order for sale will naturally force the parties to “downsize”, it may well be postponed when there isn’t enough money for the non-debtor spouse to move into an alternative home. In exceptional circumstances, the ill-health of either spouse may cause the court to refuse or postpone the order for sale.

Those presented with an application for an order for sale should take some comfort in the fact that the order should not be granted automatically without the court considering the above factors. As ever, the recipient should take robust legal advice, and ensure that he is doing everything in his power to show the court why the order should not be made.

If proceedings have commenced

But what happens when divorce proceedings have commenced, and the debtor spouse is declared bankrupt?

In brief, the net effect of a spouse being declared bankrupt is that “their” assets no longer belong to them. They are owned instead by the trustee in bankruptcy. As a result of the bankruptcy a conflict will inevitably arise between the interests of the trustee and creditors on one hand, and those of the bankrupt and their (soon to be ex) spouse as well as any children, on the other hand. The effect of that is that if, for instance, the former matrimonial home is owned jointly, the house cannot be transferred into a spouse’s sole name without the trustee’s consent. This is only likely to be given if the spouse can buy the bankrupt’s share at a reasonable market value. Where the property is held in the bankrupt’s sole name, steps should be taken immediately to register the non-bankrupt spouse’s matrimonial home rights at the Land Registry. These rights will then be binding on the trustee, although they have the power to apply to court to terminate them.

Regardless of the outcome, the non-bankrupt spouse does have a grace period of 12-months in which the home cannot be repossessed, which should provide time for long-term arrangements to be made.

A divorce “tactic”

The impact of a declaration of bankruptcy is so serious and far reaching in divorce proceedings that it is not unknown for one party to use bankruptcy as a tactic. I am sure most family lawyers will have heard on more than one occasion: “Fine, let them do what they want. I’ll just go bankrupt”. It is therefore vital to try and reach an agreement and have it approved by the court before the bankruptcy takes effect. If the bankruptcy is already in effect, it may be possible to apply to annul it if the bankrupt is not in fact insolvent.

The impact of a bankruptcy order will depend on when along the timeline of the divorce and ancillary relief proceedings it is made. If a bankruptcy order is made before a consent order is approved and decree absolute pronounced, then any agreement as to finances is at risk. The trustee in bankruptcy can apply to reverse any transactions made in anticipation of that agreement. If the bankruptcy order is made once the consent order has been made but not yet implemented, a transfer of property order should be enforceable against the trustee (as the spouse will receive an equitable interest in the property ordered to be transferred at the date of the order).

Bankruptcy has the potential to severely alter the playing field in a divorce, and what might have started as a classic case for division of the matrimonial assets to meet the parties’ housing needs, may be suddenly complicated by the appearance of the trustee in bankruptcy – and his queue of creditors. Our advice would be that where there is a risk of bankruptcy, thorough financial disclosure should be undertaken and the necessary enquiries made before the court is asked to make any order which might be reviewable later on. It may be necessary to ensure that the potentially bankrupt spouse signs a declaration of solvency.

Every effort must be made to reach an agreement at the earliest possible opportunity, particularly to safeguard your position in relation to the matrimonial home, and court approval of the financial agreement should be sought without delay. Above all, spouses and solicitors should be alive to the possibility of bankruptcy in every case and should be prepared for prompt action. In doing so it may be possible to protect the interests of the non-bankrupt spouse. As ever, divorcing spouses should take professional legal advice as the complexities of these situations demand an experienced approach.

Ellie Webster graduated from the University of Bristol with a first class degree in Law and French in 2005. She went on to complete her Legal Practice Course at Nottingham Law School and joined Stowe Family Law upon qualifying as a solicitor in 2009.

Author: Stowe Family Law

Comments(113)

  1. DT says:

    Ellie

    You’ve managed to make a very complex area of the law accessible and interesting.

    Well done!

    DT

    • sanjay patel says:

      My wife transferd her property to her brother some five years ago whilst marriage was in trouble. Also it was done with the intention to avoid creditors as she then enterd into an IVA. which is still running.
      She claims no consideration was payed. My solicitor does not want to bring this into divorce financial matters or neither tie her brother into proceedings as he claims this would be undue pressure. Surely fraudulent transfer should be considered and her property transfer looked into.

  2. Joanne says:

    Hi,

    Just read through this blog and found it very interesting. I am in a position where I have been seperated from my husband for over a year and reecently he found out I had starting seeing someone else and has now become very difficult. He is atempting to threaten me with an order of sale, stating that I am refusing to sell, which is not true. The house has been on the market for 5 months with only one offer to date 20000 below the asking price which I can’t afford to accept. I am a child minder by profession and my home is my place of work. I can’t aford to move out yet as my business does not earn me enough money to get a high enough mortgage to sustain my business at a new property. We were married for 12 years and have no children together. We seperated as he was being unfaithfull.

    Thanks.

    • jacks says:

      Hi, how did you get on? I am in the horrible stage of separating with my partner. I have two kids, a joint mortgage and i am a childminder. He won’t leave and i can’t afford to leave as i will loose my job. If i look at renting then most don’t allow to you to child mind. Help! How did you get through it? I hope you are happy now.

  3. Frustration Mounting... says:

    Hi, unlike the lady above who I feel sorry for the pressure she is under to sell after a short period of time, I am in the opposite situation. My boyfriend has been separated/divorced for 4/6years respectively. The original order required him to transfer the deeds into her name which he couldn’t do until she sorted her own mortgage. After a number of years of inaction on this front (the house is heavily mortgaged to her maintenance despite having significant equity), she agreed to sell over a year ago.
    However there has not marketed the property despite my boyfriend offering to guarantee her mortgage and she would only have to have a mortgage of 25% loan to value.
    It is frustrating as he has been more than fair & patient. We are desperate to sort this given the size of the mortgage, it affects his line of credit. Time, patience and non Legal tactics have ran out… Any ideas welcome of what we can do to address this and force the sale.
    Many thanks

  4. mel says:

    My partner and i are in a similar situation. his ex wife lives in their jointly owned property and is refusing to sell or buy him out. they have 3 children who live there with her. they stay with us 3 nights a week and will always have a home with us and she can rent as she would get benefit in full. he pays her maintenance and she has defaulted on the mortgage 7 times and incurred charges. she is making no attempt to pay the arrears. she is letting the house fall into disrepair and now is moving her new partner in. we are going to apply for an order of sale or transfer to his name but are very worried about losing due to the cost involved but we cant face financial ruin if the house is repossessed.
    she believes the court will allow her to stay there until the kids are 16/18 even if she causes him financial ruin, then she will move out and leave him to pay it all as she does not work!!!!!

  5. jackie says:

    Hi
    Myself and my husband are facing bankrupcy. Is there any way we can protect the family home. We are seperated and he has left the country and left me to sort our the mess. My daughter suffers from depression so it would be really important to keep the family home for her.

  6. Helen says:

    My estranged husband is in bankcruptcy, we have been separated for over 4 yrs. he is owing HMRC about £60,000, he leaves elsewhere and has not contributed to the mortgage or maintenance since he left . Trustee in his bankcrutcy had already expressed their interest in the property. The house was put in market over a year ago. We recently found a buyer but he is refusing to sign, please advise me on what can be done in this case as I really want to get out of the mess he left. I will appreciate a quick response. Thanks

  7. Kassy says:

    I am slightly confused… Where does s335A of the Insolvency Act 1986 come in to this?

  8. Caz says:

    HI,
    I have a difficult one, I’m currently employed and pregnant with our 2nd child the house is in my husbands name and I have several unsecured debts. I have had these since long before I met my husband. My husband has no debts and he very little equity in the property. My question is I think I might be losing my job and if I do I might not be able to find work until after my child is born. If I were to consider bankruptcy would the courts seek to take our home from my husband. Or can I go Bankrupt without it affecting him and his property even though we are married

  9. Jean says:

    All my married life I have paid the mortgage and the balance was recently paid from an inheritance I received. We are both now retired but my husband owes money to the inland revenue.If we change the deeds to be all in my name can the inland revenue still force a sale for money owed to them.

  10. Darren says:

    Jean,

    I am in exactly same position by the house was transferred to my wife just over 5 years ago and I have not contributed since, although we still live together – I only receive dla and can prove I have not contributed!

    Let me know if you get answers

    Thankyou

  11. Kat says:

    Hi

    I am happily married with a child and I have lots of debts from before I got married. Would I be able to declare bankrupt without it having any effect on my husband? Would he even have to know? We currently live in Army Accomadation and will be for the foreseen future. Please can you advise me on this subject as I have no means to pay the debts myself and do not want my husband to suffer or have any knowledge if at all possible.

    • Marilyn Stowe says:

      Dear Kat
      You should take insolvency advise;- if you cant pay your debts you could consider entering into an IVA with your creditors, them agreeing to accept much less to save you from bankruptcy or bankruptcy if its unavoidable. Unless you have joint debts it shouldn’t legally affect him. But it might affect your joint credit rating in the future and if you apply for a mortgage together.
      Its not a good idea to hide this from your husband. You should be able to discuss this as a couple and he should help you through what is clearly an extremely difficult time for you.
      Both of you need to trust each other and I imagine if this comes out in the future (which it may well) he will be very annoyed and it could affect your marriage. Try counselling if you think it necessary.
      Regards
      Marilyn

  12. Jane says:

    Me and my husband have been separated since 2012 and have currently filed for divorce we have agreed arrangement’s for out children 18.17. and 14. However his financially responsibility is legally coming to an end now for two of our children despite them still living at home with me and the amicable split is now getting nasty. Our marital home is being repossessed as he was unable to remain there, so there will be a negative amount owing on this, is the debt split 50 50 even though he has far more surplus cash than me, I am also worried if he makes himself bankrupt will I be liable for the full amount even though I am raising our children?

  13. Vath says:

    I have lots of credits. I am planning to go on bankruptsy. Our matrimoniel house is in my husbands name, will the creditors come behind my matrimonial house still.
    Please advice

  14. Donna says:

    I have found myself in a desperate situation.. I ended my abusive relationship (not married) a year ago and my ex moved out of our home. following countless threats to kick us all out of our home and has now been to a solicitor and says that unless we agree to the sale he will begin court proceedings for force the sale. I have had legal advise and will be challenging the order for sale as we have 3 children who are settled and have the best chance of happiness which after everything they have been through is the very least they deserve. I believe that the upheaval and stress of a move will greatly affect them all particularly as the abuse though not violent as such has left some emotional scars. I am interested to know of cases or an order for sale that have been challenged and won. I obviously would like I for my ex to be able to move on with his life and find himself a home but surely the most important thing is to keep the children in their home.. We live in a small village and I have an excellent support network that is invaluable as a single parent. The children are happy and secure and to move them away even to one of the surrounding villages would isolate us from the community that we are a part of. It is challenging enough on a daily basis so to loose this network would devastate our lives.

    • Marilyn Stowe says:

      Dear Donna
      Under the applicable law – which is the Trusts of Land and Appointment of Trustees Act 1996, the court may order a sale of the property but does have power to postpone the sale if it is in the best interests of the children. You can also apply for a court to consider your interest that you may have in the property if any under the same law, but you can also make an application under the Children Act for financial provision including a contribution towards a cost of a home to live in and a lump sum and other financial orders. You will need to see a solicitor to get more assistance about this. Its a long shot but legal aid may possibly be available if you can prove there has been domestic violence in the past and you qualify on financial grounds too.
      Regards
      Marilyn

  15. Mark says:

    Hi, I’m in an impossible situation here; my mother is nearly 60 years old and disabled/homebound with 3 terminal desieses. The building society are beginning proceedings for possession because she cannot afford the £2500 monthly payments they have defaulted to her, meaning she’s building huge arreers every month. I’m desperately worried and can’t sleep or eat knowing she may have her home taken away from her. Is there any hope?? Any help would be so so appreciated.
    Thankyou
    Mark

  16. Donna says:

    Thank you Maryln for your feedback above. I have thankfully managed to find myself a guarantor who can help me to buy my ex out of the family home. However I was just wondering as he is asking a really high figure (he has agreed that I can owe him some which is not ideal because of his control issues but it is the best way to avoid court.. I am currently being assessed for legal aid but its almost impossible to get..
    I was wondering as we have a figure that is the equity but what fees etc should be taken off thus lowering the amount I have to give him to transfer the ownership?

    • Marilyn Stowe says:

      Dear Donna
      You need to deduct the mortgage(s), any agreed debts, the notional cost of an estate agent and solicitors fees.
      Regards
      Marilyn

  17. Andrew says:

    Am I being old-fashioned if I say that the external creditors must come ahead of the spouse? Marriage is, after all a partnership.

    Many small traders face bankruptcy and ruin themselves if a major debtor goes bankrupt and there is not an early and substantial dividend.

    Years ago I advised a smallish builder than if he worked on anyone’s home he should insist “for legal reasons” that they both sign the contract – whoever owned the place. Then if necessary he was protected. I was right!

  18. Anonymous says:

    “Bankruptcy has the potential to severely alter the playing field in a divorce, and what might have started as a classic case for division of the matrimonial assets to meet the parties’ housing needs, may be suddenly complicated by the appearance of the trustee in bankruptcy – and his queue of creditors.”

    As a woman, am I not allowed to have a queue of creditors? Shouldn’t this read his or her?

  19. Andrew says:

    You are, Anonymous (Anonyma?) but in all the reported cases it has been the man who is the bankrupt so perhaps Marilyn can be forgiven this time.

    Often the collapse of the marriage and the collapse of the business go hand in hand and it is difficult to say which caused which – in fact they reinforce each other.

    What is certain is that if they had both survived and prospered the wife would have enjoyed the benefits – which is why it is only fair that she should suffer the disbenefits when they don’t and not externalise them onto the creditors.

  20. Janey says:

    What if the husband has secretly signed guarantee in both their names and the bank has encouraged him to do it? What if she has not benefitted from the business but is the main saver in the relationship ? What if he has reneged on a marital agreement not to borrow?
    Why should she suffer the disbenefits imposed by a cheating husband.

    • Marilyn Stowe says:

      Dear Janey
      She mustn’t! She needs to challenge the documentation and also prepare a cogent response using the arguments open to her under section 25 Matrimonial Causes Act 1973.
      Regards
      Marilyn

      • Marilyn Stowe says:

        Dear Janey
        Andrew has commented on this thread. To be clear, I’m not suggesting she launches a full scale attack on the bank without assessing the risk including costs. I think the position should be investigated i.e. the circumstances as to how the forgery occurred. I have come across this before. It happens. If a case can be made for forgery then there could well be a remedy against the bank but the first line of attack is against the husband and the assets of the marriage and that is why I made reference to section 25 which includes the conduct argument, needs, contributions etc etc. Please download my book for 99p from the sidebar for much more detail. The proceeds go to The Children’s Society.
        Regards
        Marilyn

  21. Andrew says:

    Of course a forged guarantee can be and should be set aside – but the banks generally take some care to see that the signatory is who she says she is. The problem is the wife-signatory who is persuaded by the husband that his lead-helicopter business is going to make them both millionaires. I am chary of the “undue influence” line of argument: you won’t be surprised to learn that I believe adults should be held to their word and take the rough with the smooth. Why, to paraphrase Janey should the Bank – whose money is that of savers – suffer the disbenefits imposed by a persuasive husband and a gullible wife?

  22. Andrew says:

    As ever (well, almost ever!), Marilyn, you are right. Actions against banks are not to be recommended.

    Where the wife’s signature on the guarantee has been accepted, somebody in the bank has either been grossly careless or is involved in what is going on. They work to strict instructions and checklists.

    Of course the first line of attack is against the husband and the assets of the marriage – but there may not be much left from the wreckage unless the guarantee can be set aside. And as I say, that’s an uphill task. Good luck.

  23. Andrew says:

    My last comment made little sense because I omitted the word FORGED before the word SIGNATURE in the second para. Perhaps it was obvious.

    • Janey says:

      You were absolutely correct in saying that you cannot win against banks – they have too much financial power. Eight years on and I am still suffering the absolute devastation wrought on my family by the bank that targeted my home without my knowledge – making sure that I didn’t know because they were aware of my objection (and they have openly admitted it!). The regulatory bodies are sympathetic but toothless. Add to that a commercial bankruptcy trustee whose self interest renders him partial towards his banking creditors. He will protect them at all costs. After all, the bigger the claim, the more fees he gets. Did he challenge the paperwork and figures? It seems not, which is unusual for an accountant. Will he admit his errors (such as signing off debts for more than the proof or failing to pursue insurance payments)? Certainly not – after all, who will make him do it? No-one. He is answerable to NO independent regulatory body. In my experience, this ‘ officer of the court’ is a rabid dog; he goes for what he believes is the easy money, no matter whose innocent lives he wrecks. I also believe that commercial trustees embark on legal cases to further their own careers (they have league tables) or those of their legal advisors. In my case, he lied at court and attempted to denigrate my character. You are incorrect in assuming that the trustee will explore the bankrupt’s assets first. My ex-husband – the bankrupt – enjoyed a substantial income and property. The vulnerable non-bankrupt spouse, usually emotionally and financially bereft, is easy meat because she has no laws to protect her interests in this country. She is effectively rendered dumb because she cannot afford legal costs and she doesn’t know the background to the debt (it’s a secret, remember!) The trustee holds her down and financially rapes her. The bankruptcy profession has for years been writing the laws that they pursue to their own advantage.
      This system needs to change. Do I have any support, please?

  24. Arlene says:

    My ex husband is in default. We have an agreement in the Supreme Court of Canada, I received a million dollar judgment and a Settlement Agreement Since I recently asked for an urgent hearing before a Case Resolution Officer, my ex has threatened he will go bankrupt and is pleading poverty. He is remarried and their major assets, home, country home, three automobiles, etc. are all in his wife’s name.

  25. Dale says:

    My husband wants to divorce me. The only asset in the marriage is the high value marital home which was bought and paid for before we married by me. He has not contributed anything financially towards its upkeep, the bills etc. My career is over but as he is much younger than me and has professional qualifications which mean that he is easily employable in a highly paid profession (£100k approx). He has worked during the marriage but all the money he has kept and spent on himself and he will no doubt claim he has no savings. He also prefers not to work very much instead preferring to work only part time. How large a claim on my house is she likely to have? Our marriage lasted seven years before he filed for divorce. We have no children. Thank you in advance for your advice.

    • Marilyn Stowe says:

      Dear Dale
      Please download my book from the side bar for the sum of 99p and you will find a detailed explanation as to the law and how the law is applied in relation to finances on divorce. The starting point are Sections 22-25 Matrimonial Causes Act and what you can claim is set out together with the factors set out in Section 25 which will govern how the finances are distributed. For example your respective pre marital assets are important particularly in a relatively short childless marriage where your husband has a high income capacity. Your reasonable needs and his going forward are important. So are your ages and both your respective income capacities.
      Without detailed knowledge of what you both have in terms of income and capital and full details of your respective circumstances and reasonable needs going forward its impossible for me to say. Do read my book because I think it will help you and the proceeds all go to The Children’s Society.
      Regards
      Marilyn

  26. Alina says:

    Hi,

    just wondering if someone knew the answer to my question which has bee bothering me for quite long time now. My husband and I have been married for 7 years and we bought a house 2.5 years ago. He is a sole owner on the mortgage and on the property deeds, however I have registered myself on the Land Registry for occupancy rights few months ago after he told me that he will sell the house and won’t give me any money from the sale. I have invested 20k in refurbishing the property however have no proof as I gave him it in cash. All utility bills and council tax are on my or joint names. Only because I did not sign the contract for the sale of the property (as we could not agree on shares), my husband decided to stop paying the mortgage and get repossessed, so I won’t get anything at all. We do have a buyer on the property and husband have missed 2 mortgage instalments hoping to get repossessed.
    What are my rights if property get repossessed? Will my husband will have to split the money (what will be left after paying all debts off to the lender) with me?

    Thank you very much in advance for any information.

    kind regards,
    Alina

  27. Donna says:

    Hi Marilyn
    I wrote to you a while back regarding my situation. I am now faced with a court hearing as my ex has applied for an order for sale of our family home. I was just wondering if there is any advise you can offer on how I should prepare for this hearing. I will be representing myself as I do not qualify for legal aid and cannot afford a solicitor.
    What documents should I prepare, how should I address the court and what can I expect from my ex’s solicitors?
    Many thanks
    Donna

  28. Sharon says:

    Hello Marilyn,
    I am divorced and there is a Court Order to sell the family home. I get half of the proceeds and a lump sum – that is not a problem for me at all. I am currently residing in house which is large with substantial bills. My ex-sister-in-law wants to buy the house and a price was agreed – the problem is she has pulled out because her buyer has pulled out. They have said that they want me to hang on to the house and not sell it to anyone else but wait until they can come up with the money. I actually have had enough of living here alone, paying all the bills while he live rent free at his mother’s, not only that he has sneakily had me paying the water bills while he has had cattle and sheep grazing on the land and taking the rent! I want to move on, get on with my life, start a business etc – I have the funds to do this, the time is right. Can I put the ball in his court now, move out, take my furniture etc clear my bills and leave him with any future electricity bills etc without jeopardizing the Court Order? I just think 4 years of a half-life for myself is enough.
    Many Thanks,

    Sharon.

    • Marilyn Stowe says:

      Dear Sharon
      What does the court order say is to happen in the interim until sale? I can’t help without sight of the order. Ask your solicitor who represented you to explain your options.
      Regards
      Marilyn

  29. liz says:

    As stated in our divorce I have remained in the marital home until my youngest child graduated. The time has come to sell. Due to student loan debts of my older children they are still with me . Heres my dilema I am losing my job in two weeks ( which he knows) is there anything to file or anyway I can prolong this sale? I cant afford to double my monthly payments even with the help of my children.

  30. Andrew says:

    And tell me, Liz, you should be allowed to break your agreement and the order of the court and make your problems your ex’s problems because . . .?

    We have been here before, haven’t we? The whole point of a any clean-break including a deferred clean break is that you don’t have to look over your shoulder, you are not concerned how things are going with your ex, that’s not your concern.

    If you had won the lottery and wanted to sell and he had asked for the entire equity you would have told him to get lost – which is precisely what I would tell you if I were in his shoes.

    Grow up and face the music.

    • Marilyn Stowe says:

      Dear Liz and Andrew
      A court order always allows the parties liberty to apply to the court to seek further time to carry out the terms of the order. That’s not the same as changing the terms, but the court does have that discretion if appropriate.
      Regards
      Marilyn

  31. Andrew says:

    True enough, Marilyn, but Liz seems to be thinking of indefinite postponement of the sale, which “liverty to apply” will not cover.

  32. Andrew says:

    Ever since Liz posted I have been trying to remember the details of a case I once handled and which I can here anonymise.

    My client (ex-h) had achieved a Mesher (through other solicitors) with a sale not before 1 January the year after the younger child, then a lad of 10, finished full-time education. He went off into rented flatland. Both parties were the children of home-owning parents; my chap’s father being dead, the wife’s parents being divorced and her mother had kept the house.

    When the boy was about 12 my guy’s mother died suddenly and it turned out that she had had an almighty row with her daughter and made a new will in favour of her son, my client; who lost no time in getting probate, selling the house, and buying himself without a mortgage a home big enough in size and near enough in location for his children to stay overnight, which his ex resented.

    Two years later my client remarried, to a woman who had come out of her divorce with a transfer of the property, perhaps partly because much of the money to buy it had come out of her share of her parents’ estate. They sold up their homes and bought a very nice house, still in the same area. The children spent more and more of their time there.

    When the boy was in his first year at University the second wife was diagnosed with long-neglected cancer – too late. When she died she left a mortgage protection policy, a will in my client’s favour, and a very angry sister who regarded my client as having made off with much of her family’s assets.

    Meanwhile the ex-w’s mother had had to go into residential care, her house had been sold, and the proceeds were being spent on the fees before the local authority had to take over – the usual thing.

    The young man graduated and my chap wanted a sale. And his ex found solicitors willing to try under “liberty to apply” for an order postponing sale until she died or remarried – that is to substitute a Martin for a Mesher order – which seems to be what Liz wants.

    By the time it came on before a Circuit Judge she was in person again and she did her best. The judge was kind to her, but made clear that what she wanted was out of the question. (It did not help her that in her evidence she described my client as “fortunate” – I knew what she meant but it was not a suitable choice of word). In words which I have practically quoted on this blog she explained that her problems were not his problems, and his accession to (comparative) wealth was not her opportunity.

    Application dismissed.

    With costs, which made a hole in her share of the equity.

    I thought the judge was right then and I think so now.

  33. Luke says:

    “The time has come to sell. Due to student loan debts of my older children they are still with me . Heres my dilema I am losing my job in two weeks ( which he knows) is there anything to file or anyway I can prolong this sale?”
    ===================================
    I think Andrew is just right here, all of this is very unfortunate but why is the former spouse STILL responsible – even if “he knows” ?

    As for the ‘older children’ – they are adults and it is time perhaps for them to put their ‘big person pants’ on. Whatever the circumstances, if the father thinks it appropriate to help them he can do so – but it is his decision alone.

  34. Debs says:

    Hi Marilyn Stowe.
    I seem to be in a very strange situation….The FMH was awarded to me..subject to the mortgage and transferred to my single ownership via the TR1. EOT has occurred on the mortgage….Ex is refusing to co-operate or pay any of the o/s debt of £140k He was awarded the holiday home built from equity releases of the FMH. We have a 24 year who lives with me in the FMH who has additional needs. I have been forced by ex to pay the whole of the mortgage from my periodical payments for the last 4 years. I am now paying just the interest. The mortgage remains a joint liability and despite my ex’s numerous applications to force me to take responsibility for the whole debt – he has been unsuccessful. However the BS wishes to know how the debt will be paid now the EOT has expired. Can the BS simply come after my asset – i.e. the FMH or will my ex assets be considered which is far larger than mine as he has remarried – lives in his wife house which she owns and earns 100k per annum.

    • Marilyn Stowe says:

      Dear Debs
      I don’t know what the court order says and although your question gives some clues, it would be wrong to guess. Go and see a solicitor and take the court order with you. Find out exactly what was intended by the court in relation to payment of the mortgage and whose responsibility it was. On the face of it, its still primarily a joint debt. You may need to take pre-emptive action against your ex but equally he may against you. So please go and get some advice.
      Regards
      Marilyn

  35. Debs says:

    Hi Marilyn.

    The FMH was signed over to me save the mortgage…But it was silent on the point of who had to pay. I notified my ex on numerous occasions he owed his share – all to no avail so I struggled and paid it out of my periodical payments etc..Ive already been to Court on the issue and the Judge refused my ex’s request to make me sell, remove his name or refinance….but stopped short of ordering him to pay….He advised that he spoke with the BS… My Ex’s response to that was to refuse to pay or negotiate ! He has assets to a higher value of the FMH….So I think I will let the BS decided what they are going to do. I am continuing to pay the interest in the meantime.

    • Marilyn Stowe says:

      Dear Debs
      If this is a joint mortgage then its a joint liability. That’s why I urge you to go and take legal advice because if he is obliged to pay it and has the means to do so, your solicitor might be able to persuade the BS to look to him. Your ex might even be persuaded to do a deal with you to get his release from the mortgage eg paying off enough of it to enable you to manage? That’s why you need legal advice to look at all of it.
      Regards
      Marilyn

  36. Debs says:

    The CO clearly stated that the FMH was awarded to me…subject to the mortgage….It did not start who had to pay it but as a joint liability we should both have been paying it..yet my ex point blank refused to. Now it has reached the EOT he keeps writing to the BS to inform them that I am liable and they should enquire how I should pay the full os balance. He has now filed an application to the Court to request that the Judge orders me to pay the whole sum in accordance to the CO which was actually silent on the issue. I have seen a solicitor and been to Court. But as the judge refused to order my ex to pay but would not order me to pay either or release him…we are at stalemate. He however has substantial assets to settle his joint liability of the mortgage and as they live in a home previously owned by his wife which is now mortgage free- he is being very spiteful , and refusing to pay up. I am continuing to pay the interest. Btw they are about to become parents – her for the 1st time at 47 and he is 54. We have 3 children – one who has Downs S – who he is trying to force from her home of 23 years….simply but not agreeing to pay his joint liability…….Will all of this be considered by the BS ?

    • Marilyn Stowe says:

      Dear Debs
      I am trying to understand what is going on here and without seeing the documents and the correspondence I cant. All I can suggest is seeing another solicitor who specialises in debts local to you and getting an opinion. Either he is responsible for the mortgage or he isn’t. It may be the mortgage payments were included into the maintenance he paid you and therefore to make him pay twice would be unfair. If he isn’t and you are solely liable you need to make a deal with the BS and again, you need legal advice.
      Regards
      Marilyn

  37. Debs says:

    Hi Marilyn,
    My case is indeed a complicated one. The whole problem revolves round the CO being silent in the respect of the mortgage. My periodical payments were not awarded including the mortgage payments. The mortgage payments should have been jointly paid – but my ex refused to pay his share for 4 years. I paid out of my maintenance to save myself and my children having our home repossessed! I have subsequently spoken to the BS who informed me that they will litigate against both parties on their ability to pay the outstanding debt before the come after the FMH as its now in my sole name… They hold us both jointly liable for the debt.
    Thank you so much for your advice in the interim.

  38. Simon says:

    My wife and I divorced in 2009 and the house was split equally pending certain determining events. Effectively the Court Order stated that she would live there rent free until that point – which was 1st August 2012. Under the same order she was to pay the mortgage and I was to look after the secured loan until the house sold. The house has been on the market since the 1st August with no sniff of a sale. I continued to pay the secured loan until August 2013 but at that point was not prepared to continue to pay when she was not willing to pay any rent – I suggested that as the secured loan and the rent figure (half of market value) were about the same then perhaps she should pay the secured loan in lieu of rent and we’d sort out the arrears when the house sold. I am now being taken to court to enforce me to pay the secured loans – should I also make an counter application for the rent, or will it be a better counter argument at the case?

  39. Tara says:

    Hi Marilyn,
    My partner & I separated a year ago. We cannot come to an agreement regarding the house. It is in joint names and we have 2 children. His behaviour has been very unreasonable resulting in a conviction and a restraining order. I have applied for a financial remedy through the courts under schedule 1 of the childrens act, either to stay in the house until the children leave full time education, or to sell, but I need a certain amount to buy a new house that he is not agreeable to. I have been told he has now applied for bankruptcy. We have a court date for 3 weeks away.
    Can you advise how it is likely to affect the proceedings and the possible outcome if it is true?
    Many thanks

    • Marilyn Stowe says:

      Dear Tara
      You need to establish that the bankruptcy is genuine and isn’t done to defeat your claim. If it is you could apply to set it aside but you do need specialist advice.
      If it is genuine then all his assets pass to the Trustee in Bankruptcy. You are entitled to stay in the house for 12 months before the court will order a sale to realise his half share. You could do a deal with his Trustee in Bankruptcy to buy him out and they may well be interested in taking less on the basis it avoids them having to wait it out for you to leave in a year’s time. So it might have been worth it.
      Your claims don’t end with the bankruptcy by the way.
      Regards
      Marilyn

  40. Tara says:

    Thank you Marilyn,
    Can I just ask what you mean when you say ‘Your claims don’t end with the bankruptcy by the way.’

    Tara

    • Marilyn Stowe says:

      Dear Tara
      If he is going bankrupt to try and defeat your claims he is wasting his time. That is not how the law operates.
      Regards
      Marilyn

  41. Alex says:

    Hello. Here’s a tricky question. Four years ago, we divorced and the courts ordered that my ex should have the mortgage on our jointly-owned property in France transferred to his sole name along with ownership. Now, he had the divorce ratified in France, the deeds transferred to his sole name.. but he failed to secure the permission of the French lender. Consequently I am still jointly liable for the mortgage. I believe that this gives me equal rights to ownership of the property despite what was signed previously during the deeds transfer? Can you help at all? My ex lives abroad but the property in question is rented out as a holiday home. Many thanks.

    • Marilyn Stowe says:

      Dear Alex
      I think in law where the mortgage transfer doesn’t go ahead the person entitled to the equity must indemnify you against any claims under it if there is a default. I think the correct course of action in such a case might be to seek a sale of the property. I don’t know the facts in your case and what the court order actually says. Go and speak to your solicitors who represented you at the time for their opinion on which you can rely.
      Regards
      Marilyn

  42. Terence says:

    I am taking my ex wife to court for a court order forcing
    here to sell the family home. If I do obtain one and she
    irgnore’s it what would be the outcome ??

  43. Terence says:

    If I obtain a court order against my ex wife forcing her to
    sell the family home, what would happen if she ignored it?

  44. Mandie says:

    Hi
    I would be grateful of your advice, my husband left myself and our 2 children (now 17 and 15) in Jan. 2010.
    My name was not on the mortgage or the deeds to the house, but I immediately consulted a solicitor who advise me to register an interest in the property with the land registry, which I did straight away, I also had the property value by 3 estate agents around the same time (their valuation means that there is a large amount of equity in the property). Last week I received a phone call from my mother -in -law on my husbands behalf (coward), asking if I had between £20,000 and £30,000 that I could lend him, and he would pay me back once the property is sold, as he is in financial difficulties, of course the answer to that is a big fat NO, I wish. This evening he told me that he owes the money to the VAT & Tax man. Where do I stand? And is there anything I can do to protect our home?

  45. Phil says:

    Hi Marilyn
    Interesting site, would be interested to hear what you say about following situation (too late to change now).

    I married my wife in Mar 1980 – we had not lived together previously – and our daughter was born in June 1980. (I was 22 and she was 24. My wife moved from her mother’s home in Suffolk to a rented house near my job in Sussex. I had a good job at the time, which I continued, so she did not need to work during our marriage. Within a year, I managed to borrow a deposit from my employer and buy a house for £23,000. However, my job required a lot of overseas travel, and by November 1982 we separated and I moved out. (In the meantime her mother had bought a house about 100 yards away from ours and moved down herself!) Divorced in 1983, we tried to work out a financial settlement but eventually my ex stopped communicating with her solicitors and her Legal Aid certificate lapsed. I lost my job in April 1983 (ironic really, seeing as the job ruined our marriage) and could not pay anything. My solicitors at the time advised me I could do nothing myself to wrap this up. So we both got on with our lives, neither of us remarried, and nothing ever sorted. F/FWD to 2010 and I went bankrupt and forgot (yes, really) that I still had (part of) the house. Discharged in 2011, and in March 2012 ex made an application for legal aid just before funding was withdrawn and got solicitors to contact me about a settlement (I do not think she knew I had gone bankrupt). Her solicitors then ask why I had not included the house in my bankruptcy. I contacted the O/R and eventually an IP was appointed. IP and Ex’s solicitors then start talking to each other while ex’s solicitors apply for a property adjustment order. 3 adjournments later they are pressing me really hard for a clean break, while still asking if I have acquired any post-bankruptcy assets my ex can claim against. IP then agrees to sell “my” half of the house (valued at £185-£215k depending on condition) to ex for £13k which she agrees to buy, but keeps stalling while pressing for the clean break agreement.

    So on Wednesday we went for the FDA, which turned into an FDR, at which my ex has a legal aid funded Barrister while I can’t even afford a solicitor, as no Legal Aid available for me. She requested transfer of entire property to her and said she wanted to sell and downsize to something around £125k. With our previous mortgage now at £16k, plus £13k to the IP, she now has equity (minimum) of £155k probably more. She will also be in line to inherit her mother’s house, I would think. She has a job, Carers Allowance, use of mother’s car and I am unemployed and effectively homeless – though thankfully not on the streets!

    Judge said (though at pains not to advise) that I had no claim against home / ex’s assets (not that it was my application anyway) due to my bankruptcy and that if I pursued such a claim I would be at severe risk of costs. Even 1% of the value would have been helpful. I thought that settlements were supposed to be calculated at the time they are negotiated based on needs, income, etc. I know this is a complex case – time lapse, my bankruptcy, failure to declare on my part, and I have now agreed a clean break consent order as I just cannot afford, nor do I have the legal knowledge, to contest it. And I know there is a strong likelihood that many will say I got what I deserved, but my ex spent 15 years with the DSS paying the mortgage interest, and has had a three bedroom house for £130 a month mortgage since then so is it entirely fair that she will now end up completely mortgage free from here on?

    Thanks for reading this far – time to move on now. But if you can comment, would be interested to hear your thoughts.

  46. Colin says:

    I have a charging order on my property it stands at 48,000 because of the intrest they added I was paying 200 a month off this debt and intrest was 300 a month am on a iva but they still refused to stop the intrest I have put my house up for sale with a local estate agent and stopped the payments now there taking me back to court to force the sale but it’s up for sale , bankgrutcy seems my only way forward

  47. Luke says:

    To be honest Phil, I don’t know what you are asking for. You haven’t lived in the house for 30 years and had completely forgot about it, presumably she has being paying the mortgage one way or another all this time and you haven’t been paying anything since 1983.
    As you have gone bankrupt I figure you wouldn’t get anything out of it anyway.

    The fact that she will inherit her mother’s house is relevant in what way – do you expect a ‘cut’ of it ?!

    So she has a job, a Carers Allowance, and use of her mother’s car – so what ? You have been apart for 30 years !
    You say you are unemployed and effectively homeless – why is that her problem ?

    You say that many will say you got what you deserved – that seems to be harsh – but I have NO IDEA why you think you are hard done by with regard to her. Time to put one’s big boy pants on – all this was 30 years ago and you seem to have contributed very little that she has benefited from.

  48. Kate says:

    I was made bankrupt due to council tax arrears. My mortgage lender wants to repossess our home and a court date has been set. My partner has lived in the house for 8 yrs mortgage just in my name. I have three school age children, two are disabled. Will I have to let the house be repossessed now or is there a chance we could stay til children leaving school in 3 yrs time? The house is in negative equity. I have no assets. I started my own business in Sept and it has potential til do well, but is still building up and not at break even yet. We are surviving on my partner’s salary.

  49. Linda says:

    Ex bankrupt 10th feb 2014
    Land register to consent to by 19th march
    Charging order on the property
    I been left with creditors 20k debt
    And the mortgage of which I have been paying
    Court action ccj and cred will put charging ord on any way
    Can I sell the house I need to get out
    Been offered 12k to borrow from friend
    To pay ccj if they will accept this amount
    Currently on Jsa and reduced mortgage pays till dec
    Mort is interest only I will never be able to pay in full
    I don’t want to face this when I’m 65yrs
    Don’t want to go bankrupt either can I get out of this pay creditor sell the house of which no equity
    I can go live with family til I get rented property
    My ex stands to rec 20-25k inheritance from his fathers will any time soon
    He is still driving about in a Jaguar of which he owed 13k in finance
    I have checked online he is officially bankrupt
    Shld I ring insolvency
    After all he has left me high and dry

  50. CS says:

    Im in an unusual situation. My husband and I separated 18 months ago, I have recently moved into the family home along with my 3 Children. The agreement was that during the summer months he would pay the mortgage whilst his business is benefiting from seasonal trade. He runs his business from our joint property which is about to fall in the sea. Unbeknown to me he has not paid the mortgage on our family home for several months and is due in court tomorrow over the matter. The house is in his soul name and the mortgage company will not talk to me without his permission. He is threatening to go bankrupt and give everything up – where do I stand?

  51. alisha says:

    My sister in law and brother have separated she lives in the house and refues to pay anything towards the mortgage she lives there with the kids two being under 5. Both are on benefits he can now no longer pay The mortgage. the house is being repossessed by bank. she wants the house transferred into her name she has registered the property with land registry as her name is not on the deeds. Will the house be repossessed.

  52. sheena says:

    Hi I’m looking some advice. I have three children ranging from 4 to 12. I have been separated a couple of years and have been paying the joint mortgage as I have been the one living in the martial home. My ex husband does not contribute towards his children. I contacted the csa but they came back saying he didn’t have any money as he declared himself bankrupt. It was only recently that I found out he had gone bankrupt my question is this. Even though the house is in joint names and we have been separated and if hasn’t been living here can the house be taken and sold to clear his debts. I had know idea he was doing this and I certainly can’t raise any money to pay him off. Thank you in advance

    • Marilyn Stowe says:

      Dear Sheena
      You havent mentioned your divorce settlement? What was agreed or ordered by the court? If none was ordered then your home could be at risk as his Trustee in Bankruptcy will want to get his share of the house. Usually you have 12 months before the house can be sold but you need to consider all your options. Go and see a solicitor straight away.
      Regards
      Marilyn

  53. Jan says:

    My husband left 2007. Our business collapsed on the back of it. He refused to pay anything towards mortgage and secured loan and I had no job and two dependent children. I didnt know about spousal maitenance at the time and actually moved out of the marital home after 14 years, put it up for sale and just hoped it would sell before it got repossessed. He wanted to go bankrupt. Refused to pay anything on the house. 12 months later I was in court and the given 56 days notice for repossesion. Long story but by hook and by crook I managed to get a job and within 2 years had paid off the arrears and within 5 had paid off the secured loan. I have started divorce proceedings a few times but he would not correspond with meso I had to wait. Finally I can now get divorced so that is where I am up to. Husband has paid £31 per weekmaintenace since 2007 and nothing towards the debts. There was about 5K equity in property when he left. He did not want the house. Did not turn up in court and has been living with gf in her propert for 7 years. Property now has about 40K equity in it. Husband wants a share? Im furious as he really left me high and dry and it really has been a case of pay itit all or lose it all. What I want to know is what is he likely to get. I want the secured loan payments that I have made in full taking into account these total 22K and have increased the equity in the house. I also have spent 5K on the house in the last 7 years. I also know the house needs new roof, rewire and an lintel which will cost around £5k so would probably sell for less than valued at. Would estate agency and legal fees be taken into account. have got these estimated at 3k. Also husband has pension worth around £5k. Thanks in anticipation that you might tell me he doesn have a leg to stand on!

  54. ZH says:

    I have just seen this website and I am in a very stressfull situation ,I have tried getting free legal advice but I cannot get it ,I have tried everything (please help) ,I have been living in the family home for over 10 years,my husband had a mortgage an d we moved in on the same date in 2004 we then got married in 2005 and had a son in 2006 ,in 2007 my husband had a re-mortgage interest only,he is sole names on it and the title deeds ,the re-mortgage was for £550.000 . In 2012 the mortgage applied to court for possession of the house due to arreas (husband unable to work due to illness) the court granted them possession (.arrears to be paid plus the house) ….however the mortgage let us stay in the house paying the monthly installments and some arrears each month ,we are on esa benefits ,a couple of mnths ago the mortgage said they had decided we needed to put the house on the market ,they sent there valuer who valued it at £350.000 they said the house had to be placed on the market at this price ,after I had 3 valuations done on the house ranging from £550-620.000 and the mortgage not letting me place the house on at this price range stating it wasnt a realistic price….they then applied to court for a warrant of eviction – a notice came and I read the back ,it said u may have different rights so i contacted the mortgage ,they refused to let me and my son stay even though I cant be rehoused by the council due to no properties available and cant find a landlord willing to accept unemployed/benefits etc and I havent a deposit or money to move ,basically I am really struggling tbh,I rang around for advice but solicitors fees were totally out of my reach,however I continued looking online etc then came across a emergency court hearing for suspending an evction warrant ,I went to court ,had an emergency court date the next day (day before the eviction) explained things to the judge,the lenders solicitor was very very harsh and rude to me when I walked into the room before entering the court room-she said you have no right being here you are not the mortgage holder,(I explained my husband was ill and I had a signed authourisation on his behalf to be there to discuss the situation)…..the judge said basically that unless arrears were paid (£29,000 ) and the monthly installments (18.000) we were to be evicted the next day at 11.00 am…..I remembered reading that within the law regarding arrears that u can divide the arrears into the rest of the mortgage term (10 years left) and offer the payments ,the night before I had done this and payments were around £300.00 a mnth …..I told the judge I had been offered employment and I would pay the monthly installments plus £300 from the arrears each mnth….it was hard work and the solicitor didnt agree but the judge agreed -an intern period of 3 mnths until november on suspending the warrant of possession terms being the monthly payments are made plus £300 off arrears…..Ok so I was over the moon about this ,but now I have a massive problem ,I have no job to start ,The dss pay nearly £600 a mnth smi payments and I have to find basically just under £1600 myself….its impossible ,I have under £1200 a mnth coming into the home,of which theres hardly anything left after everythings paid out…….the judge said I need legal advice….I cant afford it ….Im stuck…… however I have been researching these kind of situations and tried to get some sort of way forward….I have got very few options – on reading through the mortgage witness statement in 2012 they stated they had not given any notice of proceedings under the family law act 1996 or the matrimonial homes ct 1967- also on the loan application for the mortgage the broker had written in his own handwriting -applicants name xxx sister named xxxx does not live at the property and has moved out of the property-(basially it says im my husands sister ……and do not live at the property)……I have the financial onbudsman fasttracking issues with the lender with regards to charges /arrears/unfair treatment plus there loan not being the same as information on the original loan application ie-interest charges etc- I think I can register an interest in the property due to matrimonial homes act/matrimonial rights / but I do not know wht to do then…all I need to know please is this—–if I register this -will it help at all…plus what application will I then need to apply from the court for ie-another n224 emergency hearing with details of the interest …..the lenders have full knowlede of my living here ,I have made lots of mortgage payments over the years plus dealt with the account due to my husbands illness (cancer plus mental health issues/bipolar) This may sound unconvincing….but even though wives have rights to the home etc my connection to the home is deeper than a financial one….it isnt a house its a home,my son loves it ,he is settled in school now and due to illness (astma which is brought on by nerves ) bullying issues I also feel if he is ripped away from the emotional security he has built up at his new school,plus his home ,he will be affected this is also worrying me…. but the facts are this -the mortgage are owed £589.000 (arrears £31.000) my hsband is unable to deal with any thing in regards to finances-people -anything really and has been for a while and I have no support at all ,I saw a financial adviser which was free but all she said was if you leave the house your husband hasnt got to go bancrupt because the lenders will then possess his only assett……I have a feeling in my gut that I have a definate legal right here with my home but I do not know what to do and I feel so helpless ,as I cant afford a solicitor and I dont expect or deserve any charity I would even pay a fee if within my power for a solicitor to give me a direction to follow with regards to this situation,and I would go to court again to fight for my home ,but no one can help me ……any advice anything at all or any hint of a way forward would be highly appreciated and I would be deeply grateful,thankyou kindly for reading this,

  55. Kay says:

    Hi. My ex husband moved out of our marital home in 2004. Got divorced about 3/4 yrs ago. We have one child 15yrs old. I have been paying the mortgage myself, since he left. The mortgage is in joint names. I cannot transfer the mortgage into my name only because I cannot prove ‘on paper’ I can afford to pay the mortgage. He filed bankruptcy late last year without telling me and moved to Sweden in January. Is there anything I can do to protect my home from his creditors if or when they come chasing?

  56. Andrew says:

    Kay, why should the law keep his creditors out of their rights to protect you or indeed your child once he is of adult years?

    Marilyn will probably find that harsh. But you married him, you cast your lot in with him, the creditors did not. Marriage is a partnership. “For better, for worse, for richer, for poorer”, and if you did not marry in church the effect of the ceremony is the same.

  57. Andrew says:

    It’s not that simple. Once he has been bankrupt for a year the trustee can apply for possession and sale and as a rule the creditors’ interests will outweigh yours or your youngster’s, but the court has a discretion to give you a bit of time such as, for example, until after GCSE’s. But plan on having to go in the foreseeable future.

    And if you think that that is unfair, put yourself in the position of the proprietor of a small business one of whose big customers is bankrupt. Getting a decent and early dividend in the bankruptcy may make it just possible for you and your family not to lose everything YOU have in bankruptcy, and the only way to get a dividend will involve selling the bankrupt’s home, regardless of the loss to the bankrupt’s family. That is what bankruptcy is about.

  58. Caroline says:

    Hello, I wonder if you can help, I divorced in november 2013, when an order was made to split the equity of our only asset the matrimonial home (70/30) in my favour, My husband had debts in his name that he didn’t fully disclose, he is an alchoholic and has mental health problems. He was ordered to transfer the propety into my name with him to have a charge against the property as I at the time could not afford to buy him out ,however he has delayed and not complied till now (he’s just signed it) meanwhile I have recieved (two weeks ago)a notice of an interim order that was made in october 2012 that is to be made final on the 29th of september. I meanwhile am doing all I can to get a mortgage to buy him out however, if I do I don’t think it will be approved in time to avoid the charge being put on the house as it is still in our joint names. will the charge affect my credit rating and therefore my ability to obtain the mortgage.? Meanwhile he has signed the original transfer document and I wonder if this is recieved by the land registry before the charge is applied can they still register the charge on the property (if it went through it would be my sole name ) given the time frame what do you think would happen, what should I do?

    • Marilyn Stowe says:

      Dear Caroline
      Your conveyancing solicitor should be able to sort this out with the creditor and the building society.
      Regards
      Marilyn

  59. Lesley says:

    Help I’m having a melt down. I’m still not divorced – he’s threatening bankruptcy which will leave me homeless. The current situation is I live in the marital home, I don’t work as he didn’t want me to! , he’s living in a flat which is in his slow name and we own a buy to let property – again in his name. At first his proposition was for me to get the flat and the buy to let as part of the settlement. Now, however he has been advised to stay in the flat – I obviously can’t afford the mortgage on the marital home. So where does that leave me and my 15 year old son – homeless?? While he still has a roof over his head in the form of a fantastic flat. I’m at Uni at the moment trying to better myself too – do I need to stop this course to get a job? Will I be able to get a mortgage once I get a job or if repossession happens can I not get a mortgage. The way he’s talking he’ll be in the ‘wilderness ‘ for a year but will then rise from the ashes. He’s an astute businessman who has done extremely well in the past – I think I’m out of my league trying to take him on. I’m sure he has hidden assets but can’t prove it and my solicitors bills are getting ridiculous. Am at my whits end!!!

  60. Lesley says:

    Help
    I’ve been trying to get a divorce now for 3 years and now have discovered he’s about to file for bankruptcy.
    We had a very good lifestyle prior to the breakup and he had persuaded me to stop working to look after him and our son.
    Current situation is im not working living in a very grand marital home with him living in a luxury apartment
    Original settlement plans were for me to get the apartment and a buy to let property we have. However he has since changed his mind – he’s staying in the apartment. Once he declares himself bankrupt where does that leave me? I don’t work and am living in a marital home with massive mortgage repayments, he’s going bankrupt so my income will cease – what shall I do? Am at my wits end. Will me and my 15 yr old son be homeless?? Desperate!!!

  61. Kirsty says:

    I have been trying to get off a mortgage that I had with my ex for the last 7-8 years with no luck. it is 75% to him 25% to me. I do not live at the property nor do I pay anything towards the mortgage. I do not wish to have financial gain out of the property I just wish to be removed and have no ties with him. It is preventing me from moving on and being able to purchase another property. At first we went through mediation to resolve the issue, to which he did not show! I then went to a solicitor who tried and got no where as he would not reply and I had no idea where he was or is. I do know that he is not living in the property but renting it out and is also now married! I am at my wits end as what I can do!! I do not understand why he will not do anything to sort this out. the mortgage company have told me that he needs to contact them to do something as he has the higher % of ownership!! i just do not know what to do!

  62. Adele says:

    I bought my property in 2010, the deposit was paid by a sale of a car which equated to 2/3rds of the deposit, the car was my car and paid for by me the rest of the deposit was paid by joint earning between myself and my husband. We had only been married for a year and The marriage was already in trouble and had been a violent episode. I didn’t put my husband on the mortgage or deeds as I knew the marriage would not last and he was a liability. Within a year of having the house we had split up and he was declared bankcrupt due to his negligence in business. The was 3 yrs ago since then we have been in and off in our marriage things got bad and police were involved last March, we’re now divorced. He is now stating claim on my property can he do this ? Even though he was banckrupted

    • Luke says:

      We all know it’s unfair Adele, but the law has been retained because it usually helps women and any law that helps women and disadvantages men is likely to be retained – because feminism dictates that.

      You were very foolish to have signed the marriage contract with him being such a liability, and may well end up being what is known from feminists’ point of view as collateral damage.

  63. Andrew says:

    You married him, it’s in the pot. Just as if you were the husband and he were the wife. Good luck, you’ll need it.

  64. Elaine says:

    Howe are in a stressful place my fiancé split from his partner 8 years ago they were never married he has always paid the mortgage even when he left he carried on paying it and having to pay private rent for himself he has even had to pay for building ins as she would not say if she had any now it is finished and his son turns 18 in July he has always paid maintenance his partner would never help with paying anything towards mortgage , she will not communicate at all he has told her through solicitor a few years ago that when there son reaches 18 the property is to be sold and he will split it 50/50 even though originally my partner had a property and when he sold that to but this one he put £20.000 down . They had a tenants in common done about 6 years ago . We are in our fifties now and we have been waiting for this year so we can move on but still she will not answer the letters my partner has sent where do we go from here . How can some expect to live rent free for over 8 years and never do a proper job we have both worked 60 hour weeks just to afford to live even though I have 2 children myself .

  65. Stan says:

    Separated from ex-partner 2 years ago. She owed me money at the time and I successfully obtained a judgment in my favour from the county court. Enforcement via sheriff officers has failed. Now discovered she is about to marry a man who owns a house. Once married will she come into possession of an interest in the property? If so, could I obtain a charging order over the property even though she won’t be on the title so that if it were ever to be sold I could collect my debt?

  66. David says:

    Hello all a quick question. If I am sailing close to bankruptcy with my salary just covering all my basic outgoings and paying back my creditors mostly Credit Cards (I do not have SKY or a Gym Membership) and my ex wife wants to sell our house and offers to pay the negative equity as the offer is less than the mortgage can she force me through court to pay the conveyance costs and then try to get her costs awarded against me which would then make me bankrupt?

  67. sarah says:

    Hi, just wondering if anyone can help.
    My husband and I separated earlier this year and even though the house was in my name so was all the debt. He wants to walk away with half the equity in the house and not pay anything towards the debts. I offered him a good amount but he wants a further £2000 and hes waited over a month to contact a solicitor and is now saying hes going to get a court order on me.
    Sarah

  68. Alice allan says:

    My ex husband agreed verbally to pay the mortgage on divorce as we couldn’t sell for over a year. We are four years divorced and I remained. My husbands a student and I’m a carer. My two children with the ex are adopted and one is disabled. My ex has moved a woman in and is now getting nasty telling me to sell. I can’t afford to but him out and I’m in a mess with anxiety fir my children as they are secure. I pay all the bills and do not get child maintenance as my ex agreed he’d pay the mortgage instead which is an equivalent figure. I can’t get the house in my own name as I’m a carer and don’t earn enough. Can he force a sale successfully? My children are vulnerable and so settled. My husband now is a student and therefore can’t get a mortgage. The children need their home. What can I do please? I read that he can’t force a sale until the youngest is eighteen. I worked hard all my life until ny sons disabilities became more apparent and have always paid for all of tge repairs to the home and enerythibg for the children.

  69. Renee says:

    Hi, I am DESPERATELY seeking some advice regarding my parents and the family home.

    To cut a very long story as short as possible. Many years ago my father who was diagnosed with “Lemphoma” and may I add, still suffers from the condition along side other medical conditions.
    He became “Bankrupt” over 7 years ago, now out of the blue they have contacted my father and mother and advised them that they are going to take there house, mind you this home is MUCH More than just a house, it’s been our family home for over 30 years.
    However they have made it clear that they intend to sell the property within 3 months if they can’t come up with $35,000, this is obviously not a option or we would have taken it and had this big mess over and done with long ago. With all this said my Mothers name is also on the title and she did not go bankrupt, it was my father and him alone. My mum has spent every last cent in savings, going to see Laywers and solisiters only to be told that there is basically nothing that can be done! I guess my two main question here are; 1. When the deed is in both names and only one of witch has actually been declared bankrupt, can they still seize the Propety by pushing her aside and pretending she dosnt exist? How can this be justified?? Furthermore, if they have NO savings or funds of any kind to even rent another property, is this something that they can easily turn a blind eye to? As they have no more money to pay for more Laywers etc do we just give up? This is taring my family apart and has left my mum curled up in bed for weeks!! Please I am Begging for ANY Possible assistance. One last detail that I would like to point out, my mother and Laywer at the time sent away a letter asking if they could at least sell it privately in hope to have something left over for a bond on a rental property etc, she was told that was out of the question, they organised there own evaluater to come out and they valued the house thousands less than it was valued years ago… Can they do this and is there ANYTHING whatsoever that we can do as every door has just been slammed shut in our faces. Also to make matters worse my father has been unable to work for many, many years due to his cancer and other illnesses, he recives A Veteran Affairs pension and my mother a carers pension. The sadest part is, the mortgage has always been paid on time and even after everything that’s happened and continuing to happen, they still make sure that there bills and mortgage are ALWAYS paid by there due dates, sometimes I can’t help but ask myself “Why? Why bother if it’s being taking from them anyway, what is the point!!!

    Please any advice would be much appreciated, as we have no other options, that we know of anyhow, this is just one final stab in the dark

  70. Andrew says:

    Renee: this is an English website and you are obviously in the USA. You need advice from a lawyer in the State where your parents live and NOW.

  71. Alethia says:

    Greetings. I am faced with grief and unhappiness. After my marriage failed obviously one divorces. I thought that was the end of my misery. My exhusband signed the marital home into my sole name due to sifening hundreds of thousands out of the home and sold a property that he brought in his sole name I did not receive any of the funds which he had. Whilst married he made me sign papers and would not allow me to read as far as he was concerned he was the main earner of the family and I was the inferior one. I am now in a major battle as my ex husband went bankrupt after signing the house into my name. I had a consent agreement drawn up as I tried to preserve the little I have left for our children as he never paid me any maintainance for the children neither paid for debts he left here. I find all this so unfair as we parted many years before we divorced. Now I do not know what to do. I have always been a law abiding citizen paid my way. Always worked. Now to be faced with homelessness with my children grandchild and other children that I look after. Someone please can you give me some advice. As I am now scraping to feed the children due to every pence that I earn is bring paid out for advice. A miracle needs to happen.

  72. L says:

    Hoping to get done advise. My marriage ended 10 months ago and aftr several attempts to get my husband to move out I decided best that me and our 3 kids move. Kids 8, 11, 19. I have been renting since but am struggling financially. My husband still lives in the jointly owned marital home but is treating it like a party zone with his friends and now hardly takes the kids overnight. The house is a large 4 bed and I have decided that me and kids are moving back in as we need a safe secure home I am afford. He is refusing to move out and said he will force me to sell. I am wondering if their is a court order to enable me to keep the house for me and my children and he can be forced out?? I can afford to pay the morgage. Their is a huge amount of equity £120k and he wants his share but I can’t buy him out and don’t want to sell for kids sake. Wot can I do?? Thanks

  73. MT says:

    PLEASE HELP ME: My husband got bankrupt for £20,000 two years ago and bankruptcy lawyers took this matter to High Court, and they made £145000 by adding their legal costs. High court ordered to sell our house within 28 days. I am the joint owner in our house and my name is registered in the land registry office and we also have a joint mortgage on this house. We have two children who are still under 18. Because of my £800 pound per month salary neither I can get mortgage on my name to buy my husband’s share and pay to the claimants nor can I buy a house from my 50% share if we sell this property which is the only property we have got. I am not the defaulter nor are my children but High court ordered us to sell our house within 28 days. I had explain my situation to the court but it was not considered. Now, I have been crying since we had court others to sell our only house. I don’t want to move from my house because I have nowhere to go and take my under age children. Also why I suffer from my husband’s fault. Therefor, I am making a humble request for your expert advice so that I can stay in this house with my kids. The property valuation is about £340000 and the mortgage is £50000. What can I do to stop High court orders if I am half of the owner of our property and have no fault, and why should my kids and I pay for my husband’s mistakes?. Please help me saving my house. Also I want to know can the court sell my house without my consent or signature?

    • Andrew says:

      MT, yours is a sad situation and it is not unusual. But let’s think about it.
      .
      Your husband is bankrupt. He has creditors. (For the costs to reach that sum he must have resisted the inevitable.) Now, some of those creditors are probably in business. If I am in business, if my family depend on that business, a big customer going bankrupt is seriously bad news. Very often that customer’s house being sold is the difference between my business surviving or going down, leaving me bankrupt and my family standing where you now are.
      .
      Which is why you probably can’t save the house; the creditors have a right to their money, and soon; not, as wives (and occasionally husbands) in your position sometimes argue “When the children are grown up” or “When I am ready to sell” or even “not during my lifetime”. The creditors’ creditors won’t wait that long.
      .
      Why should your children and you pay for your husband’s mistakes? Because he is your husband and their father; he is not married to one of his creditors and the creditors’ children are not his children. So you should lose out rather than somebody else’s wife and children.
      .
      Can the house be sold without your consent or signature? Yes, it can. The bailiffs can evict you and the District Judge can sign your name to the contract and the transfer. But that will cost money and it will come out of your share. Better to cooperate with the trustee in bankruptcy now.
      .
      I know all that sounds bleak, even harsh, but that is how it is. Creditors have rights too.

  74. Tammy says:

    Long story short- My ex husband who changed the locks and wouldn’t let myself and out 3 children live in the house is now threatening bankruptcy. What do I do can I take on the mortgage? Help please

  75. Name Witheld says:

    I got married 9 years ago.my husband has house in sweden and buisness in sweden .we did prenuptial agreement that whenever we divorce or sell a house I have a fully right to claims my 50% right in his house.now we are living in London and house is in sweden and my husband started buisness here it did not go well and he declared bankcrupt.so how can I claim my 50% right in house in sweden and how do I excercise my rights regarding this issue.

  76. a j says:

    my ex and i are on a joint morg but he has been told via court order he hould pay me a vat amount of money for something he did to me i know he has no other monies to repay me his debt but can i take it from the share of whats left in my house and also can a court force his to tranferr his share to me to offset the debt many thanks

  77. Terry says:

    Marylin I have a question and I really hope you can help.

    At final hearing I was awarded full equity of the matrimonial home on the condition that if I remarry or sell the house or when the children (who live with me in the matrimonial home) turn 18 they should receive a percentage each of the equity as it stands now.

    My ex husbands solicitors would like to facilitate this by putting a legal charge on the property instead of setting up a trust as they say its more costly to go down the trust route.

    My concern is if I sell the property now I would need the use the children’s percentage to get another mortgage, in court the judge said their percentage in the property remains mine (until they’re 18 or I remarry) and I could ‘use’ their percentage to secure another mortgage as long as I take responsibility for making sure their percentage is still safe for when the trigger points happen. Would the legal charge route my ex husbands solicitors proposed be in any way detrimental to this?

    Finally if I decided to move in with a partner and rent the matrimonial home out would there be any detriment if there was a ‘legal charge’ rather than a trust? Could my ex husband make this difficult or stop me being able to do this whichever option we choose? The judge specifically said that only remarriage and not cohabitation would be a trigger for release of the children’s percentage of equity if that helps.

    I really hope you can help.

  78. Anon Y Mous says:

    Re the TR1, we have settled for £110k, but the FMH is £70k. On Q8 of TR1, which box should be ticked and what should be entered?

  79. Withheld says:

    Hi
    Please could you help. I separated from my husband in 2014 and registered home owners rights on the property. In 2015 my son and I moved back to the marital home after we asked bad tenants to leave. I refurbished the martial home due to it being inhabitable and we have lived there since. Last year in April we agreed to sell however my husband wanted £20k more than the valuation on the sale price which wasn’t achievable so it wasn’t put on the market. In June last year a charging order was put on the house for a personal debt of my husbands of £75k he said it was a mistake and he was sorting this out he never resolved it. He made several offers to the debtor which they didn’t except.
    The debtor has now threatened an order of sale so I have put the property up for sale and an offer has been submitted just under the asking price. The debtor now has asked for me to prove that I hold 50% equity in the house as the property is in my husbands name. I have sent the debtor evidence of the mortgage payments and my contribution to the deposit. I have been paying the mortgage for the last two years along with additional fees for the arrears that my husband has run up. I have one son who is 17 and in full time education. I have applied for a divorce and the decree nisi has been processed my husband verbally agreed to a financial order which my solicitor prepared he then wouldn’t sign this which has left me with a £2k bill. My husband is saying he has no money to pay me 50% equity which would be £52k. So the next step is a financial hearing which my husband has said he will push around for years. Just to add to the mix my husband in writing has offered me, to sponsor my legal costs if I was to defend the equity against the debtor and if we lose he will give me £25k over 2 years. Any help with this would be greatly received.

  80. Andrew says:

    If the equity is £104K and the debt is £75K there is going to be an order for sale. Count on it. If you and your ex can’t agree the creditor will get an order to pay the balance into court so that he can give good title to a buyer, take his money, and leave you and the ex to fight it out between yourselves. You need to plan on moving soon, and probably into rent-land.

  81. Ray Phillips says:

    please get in touch. I don’t know where to go as I need help. Please.

  82. Anon y mous says:

    My husband has charged in his name on the house totalling £37k. About £20k relate to business debts. The house is in joint names, and the equity is roughly £40k in the house. I pay all the bills and mortgage, the house was originally mine then when he moved in we remortgaged in both our names. My husband is looking to go bankrupt as he has other debts also. Would this affect my share in the house? I really don’t know what to do, as I’ve lived here for over 10 years and have 2 small children. I’m absolutely gutted it has come to this. Please can someone help as I have been told that they can’t come for my share, we are planning on selling the house anyway to get away from the area but I will need my share of the equity to pay off my debts and have some left to pay a deposit on a rented house.

  83. Jana Novak says:

    Good afternoon,
    I am getting through the divorce. My husband has been previsouly married and is divorced. During looking through the papers I have find out he has put house where I am living into financial settlement with his exwife and since he didnt pay her agreed amount she has a court order over my house. I am not on mortgage as my husbadn wouldnt allow me. I have contributed to purchase and keep of the house as I was always working full time. I was pregnant at the time he has done it. He hasnt told court that I was in the house and that I am epecting child. How can she sell my house?

    • Andrew says:

      Jana, put yourself in her shoes. She was his wife first. There has been an order. It has to be satisfied. If that is the only asset which can meet the debt a sale must follow.

  84. sf says:

    in needing advice my husband left us last year with 3 children still living in the house ages 16/8/3
    8 year old has disabilities
    he’s beeb paying the mortgage for the past year but as left 10000£ of damp work needing doing
    he pays csa but right now due to the repairs i can’t afford to take the mortgage on right now and left work due to stress he caused
    he owns a static caravan a car and found with 43000 in savings (which he was arrested so it’s on police record he had the money) the house has 52000£ left on the mortgage and as it stands in disrepair there’s no equity right now
    i’m not sure how to go about this in court as he’s took me to court for financial issues and i’m representing my self and now on benefits since february due to stress he’s caused me

    iv filled in the form E and stated i like him to pay the mortgage and a lump some towards the repairs and to transfer property to me on the condition i find a mortgage when my youngest turns 5 and attends full time school and said on the condition i don’t go for other assets pension/car/caravan etc
    am i doing the right thing i’m so confused

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