Housing options following separation

Lots of good guides and helpful comments, but none precisely match my circumstances. Wonder if anyone could narrow my options?

In short:
1. Not married.
2. Separated 2 years ago, moved out of the house 1 year later. I moved into rented accommodation leaving ex- with our two kids in the house. I continue to pay the mortgage and until recently, she paid me rent.
3. She has now stopped paying me rent, and taken me through CSA. She now gets slightly less money each month.
4. She left a significant debt on my (not joint) credit card.
5. She has moved her grown-up daughter (not mine) into my house against me express permission. She pays me no rent either.
6. I have taken my ex- through the court to gain reliable access to my kids. An order was made, she did not follow it to the letter. Now, she failed to turn up for the review court appointment, but her solicitor claims not to have been informed of the date (she did know about it as we organized a second mediation session to be timetabled prior to the court review date).
7. Mediation has failed; she won’t confirm the next date.

I now need to sell the house. I have always promised to divide equally the equity to allow us both to move on. A complication is that she has placed a restriction on the house; the house was to be in joint names, but the mortgage in my sole name (she has a poor credit rating). Paperwork was lost by the conveyancing solicitor, with the end result being that the house deeds & mortgage are in my sole name. I have paid the mortgage since the outset, and all the bills until I moved out. She does not have the ability to buy me out. We drew up a Separation Agreement which would have given her two years in the house but she never signed it.

Any help to untangle this unfortunate situation - I have (paid) legal advice but the prospect is a lot more expense ... Would value a second opinion. Am currently on the financial edge, too much more expense and I will need to declare myself bankrupt. …. Would that route solve the situation?

Thanks

It certainly is complicated, probably much more so than you realise. My first question is, who owns the house ?
You seem to be accepting that the house belongs to you both. However, what we have here is, or seems to be :
(a) that you are not married
(b) the house is in your sole name.
Now normally when this situation occurs, the presumption is that whoever is named on the deeds as the sole owner is indeed just that - he or she owns 100%.
So if your ex partner wished to claim an interest in the property, she can do so, but she would have to prove it. This can be done in a number of ways ; if for example there was an express deed of trust, that would be very important. She could claim an interest in the house, for example, by showing she had contributed to the deposit, or paid the mortgage, or help finance improvements - but paying the household expenses is not enough to establish an interest. And even if she can establish an interest there is still the question of how much that interest is.
You would almost certainly have problems in selling the property even if, for argument''s sake, you were the sole owner. A buyer''s solicitor would note that there was a restriction on the title and that alone would put him on enquiry and (s)he would be bound to go into the matter very thoroughly ; a lawyer does not want his client buying a house and then finding out that someone else is entitled to live there.
Another possible complication is that your ex partner could apply to the Court for a transfer under the Children Act 1989. Whether she would, I can''t say, it''s a bit of an esoteric point, but it''s there, and the power can be used to delay a sale to provide a house for the children.
Do I advise you to go bankrupt ? My immediate reaction is, probably not. Nobody should take the step of going into bankruptcy lightly. If, for the sake of argument, you go bankrupt, then the result is that normally the bankrupt''s property will vest in the trustee and the chances are that sooner or later ( for technical reasons which I won''t bore you with, the trustee will usually wait one year before selling it ) but then the same argument is going to emerge all over again. She is going to claim she has an interest, in which case the same old arguments will re-surface. Does she have an interest and if so, how much ? In any event, if you go bankrupt the chances are that your child will be homeless after a year. Add to that the fact that the costs of bankruptcy can be very high and guess who''s going to pay them. I must stress, it is in my view essential that the implications of bankruptcy be discussed with someone competent to advise.
Look, I don''t know enough about this to offer any clear advice at all. I just get the feeling that if the two of you can come up with a compromise that you can both live with, and thereby avoid what could be a considerable expense in having a fight through the courts, I think that would probably be the most satisfactory outcome. I just get the feeling that the costs could easily exceed the sum at issue.
LMM

Dear LMM

Many thanks, very very helpful. A point of clarification if poss.....

Yes, I do own the house, it''s in my sole name, as is the mortgage.

When the restriction was lodged, my ex- claimed she contributed to the purchase (I can prove she did not), that it was intended to be a joint purchase (but mortgage was to be in my name only), but the deeds were ultimately registered in my name.

Paperwork was lost by the conveyancing firm who appear to have made the change themselves as no paperwork exists as to why her name dropped off the deeds - it is my opinion that the mortgage company would not have been content with joint ownership of the house but only a single name on mortgage, but as said there is no paperwork to support this assumption.

Of course, I could have asked for this to be corrected at the time but chose not to as she did not contribute (and yes, we were happy at the time).

To minimise that source of friction i did agree to explore why the change had happened, to convince her that i had not acted deceitfully. The argument over the house ownership is therefore not a consequence of the separation. That said, the missing paperwork makes the situation far from cut and dried I believe ? Am I mistaken on this point ?


My solicitor did not contest the restriction, my recollection was that since we were in the final stages of drawing up the separation agreement (which also dealt with the sale of the house) it was felt that there was no need. The agreement was never signed. Does this make the agreement null and void ? Does not contesting the restriction in essence amount to acceptance ?

Thanks
Peter

Well, if the property, and the mortgage are in your name, as I said, the starting point is that you are the sole legal and beneficial owner. It is possible for a party whose name is not on the deeds to establish an interest in the property under the general law which applies to land ownership, but they have to prove and if the evidence is missing, that could be kinda sorta difficult.
It looks to to me very much as though your partner is not going to move off her own bat. In purely practical terms, she is enjoying rent free occupation and I can see no obvious reason why she would want to give it up.
You say it is your opinion that the mortgage lender would not be content with two borrowers. I''d be surprised about that, to be honest. Having two borrowers as opposed to one simply means there are two people they can sue if the mortgage is not paid, as opposed to one.
I think you''d have difficulty if you were trying to sell. Let me tell you why. It used to be, shall we say, not unknown for spouses ( usually, I''m afraid, men ) who were the sole owners of the house in question, with a wife and family, to mortgage the property without the wife being aware of it. The mortgage fell into arrear, and the unfortunate wife found out, too late, that she had been deceived by her husband and stood to be evicted. So to stop this the Courts and Parliament, quite rightly, introduced various safeguards, notably matrimonial home rights, which I take it you know about.
So if a conveyancer is buying from you as joint owner and there is a woman and kids living there, the buyer is going to ask all sorts of awkward questions and will probably want a written statement from the wife or other occupants that they claim no interest in the property.
I''d suggest it would be worth having a word with the Land Registry about the restriction. My esperience of them is that they are always helpful, and the world would be a better place if all public officials were that knowledgeable.

LMM

Hi,

The issue with the mortgage company was there would be three nominal owners - me, my ex and the mortgage company - but only one borrower - me - and hence why she was removed. Maybe I''m missing the key issue here !?

I''ll contact the land registry and see what they say !

Thanks

That was the best, clearest article that I have read over the last 2 years on property. Extremely helpful thank you.
There are just a few points peculiar to me that I am wondering if you could possibly enlighten me with please?
I am the sole owner on the Title Deeds and the mortgage as I purchesed 16 years ago when we had already separated and he received £35,000 from the last "FMH". He now lives in council rented accommodation I was forced out because of threats of violence for which I have a police restraining order against him and I am staying with family as a guest. I have rented out the house for 2 years for my own safety but want to return there at the end of the tenancy as it is my home. My 23 year old daughter is considering living there with me and her 4 year old son (it has 3 bedrooms. I have been the sole breadwinner for the entire 25 year marriage but now live on a company pension after being made redundant I am 57 and receive no benefits but my ex gets legal aid. I am struggling with legal costs etc. and I have recently stopped paying the mortgage and considering just letting the house be re-possessed as I know it will not sell for £175,000 that it has been valued at and he is claiming half of this. Should I keep making mortgage payments or will this be of no benefit to me in the end? I just feel like giving up

Madam, thank you for your kind words. If you found it helpful it was worth writing .

I am off to church this a.m. and since I''m the organist they can''t do without me. But there are a number of questions here

Firstly, are you actually divorced, or just separated.

Secondly, if you were divorced, do you have a Court order.

Thirdly, how long have you been separated.

My feeling is that your problem is multi-faceted and I think you need more than a little bit of help.

But one thing I can safely say is, you must not allow re-possession. For a number of reasons, this is a very bad idea.

You say you receive no benefits and I''m pretty sure I know the reason. We need to go into that one. I am inclined to think your fears may be a little exaggerated, but we shall see.

Will you please answer the questions first and I can put my thinking cap on.

LMM