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Mortgage

  • Dicko81
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21 Jun 12 #338241 by Dicko81
Topic started by Dicko81
My name is still on the mortgage of the marital home, I left 4yrs ago and now want to get a divorce- will this cause complications???

  • LittleMrMike
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22 Jun 12 #338281 by LittleMrMike
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Yes, I''m afraid it could.

When a property is in joint names, and has a mortgage on it, there can be subsequent problems if one of the joint owners is not allowed to occupy the house, or even worse, deprived of his interest altogether – and yet still be legally liable to pay the mortgage.
If one spouse has the right to occupy the FMH to the exclusion of the other, (s)he must expect to be responsible, as between the former spouses , to make the mortgage payments. If the spouse in occupation is not able to make these payments, an order along these lines should not be made at all.
The problem is that, when the mortgage was originally taken out, both parties jointly borrowed a certain sum of money and agreed to repay it over a period. This can be enforced by the lender as a matter of simple contract and the liability will be known in law as joint and several – which in plain English means the lender could sue either spouse, or both. This is not affected by the fact that one of the spouses does not live there.
Furthermore, the Court cannot order a lender to release the non-occupying spouse from his/her obligations under the mortgage. So in theory, if the spouse in occupation defaults, the former spouse could be sued as well.
Unfortunately there is little that can be done about this, given the state of the law. Where this applies, then the question has to be asked as to how the spouse out of occupation can protect himself.
The answer is, unfortunately, not a lot, but the following are possibilities.
• As previously noted, anyone faced with this possible situation should at least be very sure that the other spouse has the means to make the payments.
• It is usual for the occupying spouse to covenant to ‘ use best endeavours ‘ to secure a release of the other from the mortgage. In the writer’s view, this should be expressed as a continuing obligation, and not merely as an obligation to write a letter to the lender asking for release, and when that request is refused, then that is it and no more need be done. It could happen, say, that the occupying spouse re-marries and the combined incomes may be enough to induce the lender to substitute the new partner. Or perhaps, over time, the mortgage debt may shrink to the point where the lender will be happy to agree to release the former spouse.
• It is also usual for the spouse in occupation to agree to indemnify the other on the event that the non-occupying spouse gets sued. This may not be much use in practice but it may, just possibly, be useful. It is still a debt and can be enforced like any other debt – if the means are there against which to enforce.
Another problem is that the fact that the occupying spouse remains liable on the former mortgage may prevent him getting another one and he may be forced to rent.

Depressing isn''t it ? Sorry this kind of thing happens all the time.

LMM

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22 Jun 12 #338298 by cookie2
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Ah Mike you old pessimist that''s usually my job :)

On the brighter side, how difficult a divorce is, really depends on the parties involved. If your ex is willing to co-operate then it will make it significantly easier. If you both want the divorce and can come to an agreement regarding the finances and house then it will be extremely simple and cheap.

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22 Jun 12 #338301 by Fiona
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Divorce and finances are separate. Being on the mortgage won''t effect the actual divorce, if that''s what you meant.

  • Dicko81
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22 Jun 12 #338453 by Dicko81
Reply from Dicko81
Thank you for your replies, I left my husband and took nothing from the house as it was originally his mortgage and his money that paid for the deposit. I only went onto the mortgage after we married as he insisted that I did.
I do not want any profit from the house as I see it I do not want to take what is his, all I really want is a divorce. We are on fairly amicable terms as we have a son together. He is happy to get a divorce as we have both moved on and are settled with other people.

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22 Jun 12 #338455 by Dicko81
Reply from Dicko81
Thank you for your replies, I left my husband and took nothing from the house as it was originally his mortgage and his money that paid for the deposit. I only went onto the mortgage after we married as he insisted that I did.
I do not want any profit from the house as I see it I do not want to take what is his, all I really want is a divorce. We are on fairly amicable terms as we have a son together. He is happy to get a divorce as we have both moved on and are settled with other people.

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