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Sale of Former Matrimonal Home Post Divorce

  • emmabm
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31 Jul 12 #346326 by emmabm
Topic started by emmabm
I wondered if you folks out there could give me some advice.

My partner has been divorced for 5 years. At the time of their divorce, a property adjustment order was made for my partner to transfer his full interests in the FMH into his ex wife’s name subject to her indemnifing him for any liability arising under the mortgage.

He was unable to transfer the property into her name with the land registry as he was still on the mortgage and the mortgage company were not prepared to release him from the mortgage so a catch 22. Likewise she has not done anything to indemnify him and hasn’t been able to take on the mortgage (which is sizeable and only affordable on a interest only basis on his far higher income). Consequently the FMH and mortgage remain in their joint names.

Recent discussions over his desire to sell the FMH between them have now broken down and are in the hands of their solicitors.

They have 3 children (all teenagers) where she is the primary carer and receives a sizeable spousal & child maintenance as she does not (& refuses to) work. She could afford a 4 bed house (she currently lives in a 6 bed...) in the same area if she sold given there is a sizeable amount of equity in the house so the kids and her own needs will still be met. Likewise if sold, she could be mortgage free or secure a small mortgage c. 10% loan to value (he is prepared to be her guarantor). My partner’s financial circumstances have changes since their divorce through a period of unemployment whereby he had to use his savings to continue with maintenance payments and now has no capital of his own so is also seeing a variance to maintenance, and of course living in such a sizeable house pushes up her income needs.

His lawyer is optimistic of pushing through a new adjustment order to force the sale on the basis he has not been able to meet the original order & tied into a unfair contract. Therefore curious for opinions. On the one hand s24A(1) of the Matrimonial Causes Act 1973 states: “where the court makes under s23 or 24 of this Act... a property adjustment order, then on making that order or at any time thereafter [my emphasis], the court may make a further order for the sale of such property as may be specified in the order, being a property in which or in the proceeds of sale of which either or both parties to the marriage has a beneficial interest, in either possession or reversion”.

However I’ve been reading a lot on this blog that it is difficult to achieve a variance to any orders made post divorce.

Thanks to all in advance!

  • TBagpuss
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01 Aug 12 #346623 by TBagpuss
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Orders for maintenace can always be varied.

With regard to the house, depending on the wording of the order, I suspect that your partner is technically seeking to enforce / implement the order, not to vary it, so far as the house is concerned.

I would guess that your ex''s order refers to his wife using hr best endevour to release him and that he will be arguing that she has failed to do so. If the order was on the basis that she would pay the mortgage and she has not done so, then she is in breach and he is asking the coutr to consider the implementation of the order.

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