So it''s all over and the divorce is done, but there''s a charge on the house. Fair enough ... but what about the terms for the release of the charge? When the kids get through their education and death of the FMH occupier are trigger events. But so is remarriage of the occupier. Is this fair? Who is it protecting? And can it be successfully challenged once included in the Consent Order?
On one level, it seems archaic; as if a new partner (often a new husband) is required to purchase the ex-wife from the ex-husband - buy her out of her debt. And wrong; if the new husband did not have sufficient funds to buy the charge out after remarriage, the ex-husband stills seems to have the legal right to force a sale to recoup his money even though the consent order had been specifically drafted to avoid this.
On the other hand, maybe it protects the finances of the new relationship. If a Clean Break was not achieved at this trigger point perhaps the ex-husband would be able to pursue the new couple for financial remedy after their marriage.
Does anyone have any views on this or on the wisdom (or otherwise) of challenging remarriage as a trigger event for release of a charge in the family court given that both parties have leave to apply for variation?
Do you mean, when an ex - husband has to stay on the mortgage of the ex-wife,because she is unable to take on the rmortgage on her own? And you think, that if she remarries someone who is not financially able to take on the mortgage either, then the ex husband should continue to support his ex wife and her new husband? Can you not see how unfair that is on the ex husband? It''s hard enough on the man that he is unable to get back on the property ladder himself, but now he has to support his ex wife as she gets on with her life and remarries......
I think the woman as a mother makes the desicion not to remarry unless she and her new partner are able to financially support themselves and her children suitable. If they can''t, then she makes the sacrifice not to move on that way in her life, which is effectively a similar sacrifice to that which the father of her children is making.
Just to clarify. This situation does not involve the ex-husband remaining on the mortgage. He merely owns a charge on the property. In fact, the ex-wife has the full burden of mortgage and the responsibility and cost of maintaining the property. The ex-husband in a charge situation is not required to make a contribution beyond child maintenance and is free to take up his own mortgage should he wish. And in this case, he does have the capital to do so.
More importantly here, he is also free to remarry and therefore, notwithstanding the above, I''m not really sure it is the same sacrifice.
I think there is a genuine problem in that if the ex-wife were to remarry the ex-husband would be in the position to force the sale of the FMH. This would seem to be the case irrespective of the fact that he was specifically denied that at the final hearing.
A lot of these times the ex also has to pay SM which contributes towards the mortgage. In my case I am having heavily subsidise my partner by paying a lot more towards our mortgage, household bills and I have to pay for everything for our daughter as he cannot afford to because of the amount he pays to his ex. I do not think that it would be fair if his ex could move someone in and still get her tax free income, keep the FMH and have a partner that could also contribute.
I guess all cases are different. If your ex put absolutely nothing into the house, it does seem unfair that he should get a penny from it.
This is the exact position that I am in. Consent order in place, child of 10 years old and I have a charge over the FMH. Ex wife is cohabiting hence breaching the consent order - ex wife is pregnant with her cohabitees baby due in Dec 2018. I'm on the mortgage which prevents me from getting my own. also had to pay all joints debts and give her the car.
She has now taken me to court to enforce the order because I couldn't afford to transfer the property into her name only.
Why should I have to provide a mortgage for her, her bf and their baby?