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

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.

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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70 comments

DT - March 5, 2012 at 11:59am

Ellie

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

Well done!

DT

Joanne - March 10, 2012 at 2:47pm

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.

Frustration Mounting... - March 12, 2012 at 10:35pm

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

mel - March 15, 2012 at 10:59pm

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!!!!!

jackie - April 16, 2012 at 4:12pm

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.

Helen - March 3, 2013 at 2:55am

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

Kassy - March 6, 2013 at 3:54pm

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

Caz - March 17, 2013 at 3:48pm

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

Jean - March 20, 2013 at 4:58pm

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.

Darren - April 14, 2013 at 7:38pm

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

Kat - September 1, 2013 at 9:58pm

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 - September 2, 2013 at 12:54pm

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

Jane - September 10, 2013 at 12:34pm

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?

Vath - September 27, 2013 at 9:44pm

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

Marilyn Stowe - September 29, 2013 at 8:23am

Dear Vath
You need some good advise. Here is a link to the CAB http://www.adviceguide.org.uk/england/debt_e/debt_help_with_debt_e/bankruptcy.htm
Go and see someone there to start with. Bankruptcy may not be the only option. The creditors can only ask you to pay your debts.
Regards
Marilyn

Donna - September 30, 2013 at 8:49pm

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 - October 2, 2013 at 3:14pm

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

Mark - October 6, 2013 at 4:46pm

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

Donna - November 14, 2013 at 2:08pm

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 - November 14, 2013 at 2:57pm

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

Andrew - November 14, 2013 at 3:55pm

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!

Anonymous - November 14, 2013 at 10:17pm

“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?

Andrew - November 15, 2013 at 7:38am

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.

Janey - November 28, 2013 at 8:57pm

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 - November 28, 2013 at 10:11pm

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 - November 29, 2013 at 7:18am

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

Andrew - November 28, 2013 at 11:51pm

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?

Andrew - November 29, 2013 at 8:00am

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.

Andrew - November 29, 2013 at 8:16pm

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

Arlene - December 5, 2013 at 5:57am

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.

Dale - December 5, 2013 at 7:06pm

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 - December 6, 2013 at 4:44pm

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

Alina - December 11, 2013 at 9:28pm

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

Donna - December 11, 2013 at 9:54pm

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

Sharon - December 22, 2013 at 5:10pm

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 - December 22, 2013 at 5:56pm

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

liz - December 28, 2013 at 3:07am

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.

Andrew - December 28, 2013 at 2:54pm

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 - December 28, 2013 at 8:40pm

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

Andrew - December 29, 2013 at 1:27am

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

Andrew - January 2, 2014 at 5:02pm

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.

Luke - January 2, 2014 at 5:20pm

“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.

Debs - January 11, 2014 at 1:03am

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 - January 13, 2014 at 1:00pm

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

Debs - January 13, 2014 at 4:05pm

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 - January 13, 2014 at 4:22pm

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

Debs - January 14, 2014 at 10:12pm

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 - January 15, 2014 at 11:37am

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

Debs - January 17, 2014 at 9:30am

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.

Simon - January 20, 2014 at 12:54pm

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?

Tara - January 26, 2014 at 8:30pm

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 - January 27, 2014 at 11:53am

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

Tara - January 27, 2014 at 2:47pm

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 - January 29, 2014 at 3:35pm

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

Alex - January 29, 2014 at 4:42pm

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 - February 1, 2014 at 9:06pm

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

Terence - February 5, 2014 at 12:09pm

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 ??

Terence - February 5, 2014 at 12:10pm

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

Mandie - February 5, 2014 at 10:01pm

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?

Phil - February 7, 2014 at 12:43am

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.

Colin - February 13, 2014 at 8:20am

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

Marilyn Stowe - February 13, 2014 at 3:33pm

Dear Colin
I am not an insolvency specialist which is the advice you need.
Im sorry I cant help.
Regards
Marilyn

Luke - February 13, 2014 at 10:54am

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.

Kate - February 25, 2014 at 9:43am

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.

Linda - March 1, 2014 at 1:22pm

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

CS - April 7, 2014 at 10:20pm

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?

alisha - June 10, 2014 at 6:08pm

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.

sheena - July 28, 2014 at 10:22pm

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 - August 8, 2014 at 3:34pm

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

Jan - August 15, 2014 at 6:53pm

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!

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