Thanks for this. Yes, I could have explained better. The house is in joint name and in arrears. He cannot truly afford the mortgage on the three bedroom property - he makes most of the payments with help from his parents. A quarter of the property belongs to a housing association (this sum is also in joint name) and he cannot remortgage to buy me out. His parents won't go as far as to buy into the property (and because of the housing association sum, they would need serious cash to get involved).
I have three children by him, only one under 18 and she is living with me. There is no life cover on the mortgage and he is paying interest only.
I would gladly let him have the house, if I could get my name off the mortgage. He is working and could rent, though. Thank you for looking at my post
You say the property is in negative equity. I think before going any further you need to be very clear in your own mind as to how the purchase money will be applied.
I can't see your name being removed from the mortgage, quite frankly. This situation happens in divorce very frequently ; what normally happens is that the woman is given the right to remain in the house for the time being, the man remains liable on the mortgage. The woman will agree to ' use her best endeavours ' to secure his release and to indemnify him against default ( for what that might be worth ).
If you sell, what would happen to the purchase money ? Does the Housing Association get paid out first, or the lender ?
Are his parents prepared to act as guarantors to get you released ?
We really need to know rather more here, I am afraid.
Having just read through these posts. I see there is someone quite knowledgable.
So If you would not mind giving me your thoughts on the following, it would be greatly appreciated.
I had my ex-partner arrested in July 2008. (Violent and volatile relationship)We were not married.
We jointly bought a property in may 2007. Everything drawn up 50/50 - Equal deposit put down by both parties. We have one child together, who is now 6 years old.
I am now in the position that I want to sell the property, the main reason its taken so long to get to this stage is we have been through the family courts for the past 3 years over contact arranagements with our little boy. Thoughout these proceedings my partner signed an undertakings part of the undertakings states that he can not come within 100 meters of the property. Due to my ex partners nature, us owning a house together still allows him an element of control and I have come to the end of my tether. The last thing I really want to do is upheave my son as he has been through enough, but we all need to move on.
Can my ex partner contest the forcing of the sale and if so on what grounds ??
(He resides with his father, he has done so since he was arrested - owns land in Northen Cyprus and as far as I am aware has a healthy bank balance, from a criminal injuries payment he received).
Would I be able to represent myself. I did so through the family courts for the simple fact that I had no other option as I could not afford what solicitor firms were asking and I am not entitled to leagal aid.
I do not want anything from him. My son would stay with me. I just want to be rid of this financial attachment.
Yes, you probably could force the sale by applying under sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996, known in the trade as TOLATA.
Where a property is jointly owned, it can easily happen that one joint owner wants to sell and the other does not. In cases like this, the ‘ remedy ‘ for the party who wants to sell to apply to the Court for an order for sale.
This post does not seek to go into the legal technicalities. However, as a general rule of thumb, we can make a few basic propositions.
• If there are dependent children involved it is likely that the Court will defer a sale until the children have attained their majority. So you would need to to satisfy the Court your child(ren) will have a home.
• If there are no dependent children the Court is likely to order a sale, but
• The Court may postpone a sale for a short time to give the parties time to prepare for a move.
It must be made clear that these are only general rules and legal advice should be sought in all cases.
You need to decide, also, what your shares are to be.
As a general rule of thumb :
• Where one party is the sole owner of the property, the starting point is exactly that – the owner has 100% rights;
• Where the property is jointly owned the starting point is that the parties own in equal shares.
• If the deeds say that one party owns, say 75% and the other 25% then that is what their shares will be.
• If either party wishes to displace these basic rules the onus is on him/her to demonstrate why.
This is usually achieved by establishing contributions, for example, providing part of the initial deposit, helping with the mortgage, improving the property and so on – but not contributing to household expenses.
So, for example, in Kernott v Jones, the property that was the subject of the dispute started out by being owned jointly. But the Supreme Court decided that Ms Jones was entitled to 90%. The facts of this case were, almost certainly, not typical. But it demonstrates that it can be done.
The above is a very condensed summary of a very complicated and involved subject and in all cases, legal advice is necessary.
Can you represent yourself ? Yes, as long as you know how to do it. I really think you need a lawyer.