My partner divorced his wife, for her unreasonable behaviour, in Dec '08. He continued to pay the mortgage on the matrimonial home since leaving in May '07 as his son was still at school but he is now over 18 and left school last June (still unemployed). His ex-wife's income is insufficient to take on the mortgage (she is paid by his company and is a co-director). Since August '07 we have lived together in a caravan on his cousin's land, rent free. My partner has no money (company struggling to survive). Without my income, we would have nothing to live on. In January 09 he asked his ex-wife to put the house (owned as joint tenants) on the market. The mortgage is £200K, company bank's 2nd charge of £100K (valuation £320 done at the time this charge was taken out last November). She has done nothing to get the house on the market and he is sure she won't. Can he force a sale and would any excess equity be split 50/50, given that he has no money and mounting debt, as does she?
On the assumption that there are no children apart from the 18 year old yes, he probably could force a sale.
Logically, I can't see why she would object, as it's clearly not feasible for her to carry on living there.
If he can't persuade her to co-operate and wanted to do it formally he would need to make an application to the divorce court for `ancillary relief'. In his notice of application, known as a Form A (http://www.hmcourts-service.gov.uk/courtfinder/forms/form_a_1205.pdf) he needs to say that he wants the court to make an order for sale of the house.
It may be that she will agree to this once she sees he's serious.
However, there may well by now be no equity in the house anyway, so that your partner would be incurring additional expense for nothing. As it would appear he has nothing left to lose, from a purely practical point of view it might be a lot quicker and cheaper for your partner simply to stop paying the mortgage and let the property get repossessed.
I obviously can't recommend this course of action from a legal viewpoint, but he needs to give very careful thought to the matter.
Family solicitor with over 25 years' experience
He may have nothing left to lose but if his company does survive, and starts to do well, he would be able to get back on his feet. Allowing a repossession would ruin his chances of getting another mortgage for a house with me in the future, wouldn't it? Also, in a repossession, the sale may not raise enough to pay off both charges and leave him with unsecured debt in the company. If his ex went to a solicitor once she has been served with Form A, are they likely to advise her to put the house on the market to save costs? Can he apply for his costs, as she has been so unreasonable so far? Apart from that form, is there anything else he needs to complete with it (e.g. an affidavit)? I can do the paperwork for him so the costs won't be too high (application fee only, presumably).
It wouldn't necessarily stop him getting another mortgage - repossessions are soon going to be so common that mortgage lenders won't be able to be too picky - but it certainly wouldn't help.
From what you say there is likely to be a shortfall anyway, as house prices have fallen further since November, and after deducting the sale costs there's unlikely to be enough to repay both loans.
Yes, I'm sure any solicitors she went to would advise her to agree to a sale.
He can apply for costs, but the general rule in the divorce courts is that no costs are awarded unless the behaviour is extraordinarily unreasonable, which this wouldn't qualify as.
If the application proceeds he will need to file an affidavit of his financial circumstances, but it's not needed at the outset. He just needs to file the Form A and the court fee. If he's on a very low income he can get a form to apply for exemption from the fee.
OK.. That's all quite clear. I have another query, though. If he manages to get the order to sell the house, and some equity is left after the loan redemptions and fees, (the bank's valuation was very pessimistic - the house was valued at £420K last summer), given that this is the only remaining jointly owned asset, might she be awarded all of the balance of equity because of his current circumstances (i.e. being supported by me)? I do have a house (which I rented out when I moved in to the caravan) but I don't earn enough money at present to afford to live in it. I am working on a contract (which ends in July) but very soon I shall need to consider whether to take this job permanently and I don't want to do that if it means she will get more of any surplus equity simply because I have a full time job.
Thanks for the Accept.
No, the presumption would be that the equity would be divided equally.
Your financial situation would be given very little consideration as you aren't married and consequently have no obligation to provide any financial support to your partner.
However, any other assets (including the value of the company, if any, and pension provision) would also be taken into account, and if your partner was significantly better off because of this the court may well give her more of the equity to balance things out.
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