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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

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The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


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Separation Equity & Bankruptcy

  • Ruby_Scarlet
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27 Jan 14 #420372 by Ruby_Scarlet
Topic started by Ruby_Scarlet
Hi
My partner (never married) left me 15 months ago I currently live in the house which has a joint mortgage with my 2 daughters. I have been paying the mortgage since he left and I am now in a position to pay him his half of the equity in the property. The problem I have is as it stands the mortgage company will not take his name off the mortgage and he has in the past mentioned going bankrupt.
What I would like to know is if I pay him his equity now is there something a solicitor can draw up stating he has had his equity out of the property and he is on the mortgage in name only. I have been told that I would be better off not giving him anything until I can get him off the mortgage as if I pay him now as he is still named on the mortgage he can make himself bankrupt and the receivers will still come after a share of the property to pay off his debts even though I will have already paid him off . If anyone can offer any advice I would be very grateful
Thank you.

  • juliette0307
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27 Jan 14 #420376 by juliette0307
Reply from juliette0307
we did that with the Consent Order. His name is still on the mortgage, but he recognizes not having claim in the equity and i agree to do all i can to take him off the mortgage as soon as possible.
Not sure how watertight it is in the case of a bankruptcy though, sorry.

  • LittleMrMike
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28 Jan 14 #420389 by LittleMrMike
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Bankruptcy is a bit of a specialised subject and wiki forum is not the best place to look for advice.

But first of all, as they say, back to basics.

Both of you borrowed a sum of money from the lender. Both of you agreed to pay it back ; simple, really, you borrowed money and both of you are under an obligation to repay it. It''s a matter of simple contract.

Both of you are, to use the legal expression, jointly and severally liable. What this means is that, if there is a default, the lender can sue either of you or both. Most likely both.

Now the position if he sells his half share to you is that, as between the two of you, you are responsible to meet the mortgage payments and as long as you do, everyone is happy and there are no problems.

You will, almost certainly, have to agree two things with him in the transfer ; firstly, you will make the mortgage payments in full ; and secondly that if you default and he is sued by the lender, you will indemnify him.

So as long as you pay the mortgage, there should, in practice, be little problem. As long as the payments are made and the conditions in the mortgage are adhered to, then you should be OK.

The main risk, from your point of view, in the event of his bankruptcy, is the possibility of the trustee applying to have the sale set aside. As long as the price you paid was a fair one at the time, you should be safe. These provisions are mainly directed to setting aside transfers which are made with the objective of defeating creditors. In practice, I''d suggest you would need to have some evidence to the general effect that the price you paid was a fair one, and hold on to it.

It''s a perfectly fair question to ask your solicitor, and one you should ask ; but I doubt if his advice would differ.

LMM

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28 Jan 14 #420420 by Ruby_Scarlet
Reply from Ruby_Scarlet
Thank you both very much for your advice - much appreciated.

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