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Clare, Solicitor
Category: UK Property Law
Satisfied Customers: 34233
Experience:  25 years exeperience
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Hi, My ex husband and I have a offset mortgage in both names,

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My ex husband and I have a offset mortgage in both names, linked to a mortgage current account. I live in the property with our 4 children and have been paying the interest since last year, he has paid nothing. The house is to be sold when my youngest is 18 (currently 13) and split accordingly. There is approx 90k still outstanding and a reserve overdraft limit of £7,300. I have just had a statement and it appears my ex has drawn £7,192 2 weeks ago. My question is, how will this affect me?I have no idea how the mortgage works in laymans terms. Will his withdrawal affect the amount I am paying each month? Can I do anything about it now or will the amount be deducted from his share when the house is sold. Any help and advice is greatly appreciated,
Thank you,
Thank you for your question.
My name is XXXXX XXXXX I will do my best to help you but I need some further information first.
Is the Financial Agreement set out in a Court Order?
Customer: replied 3 years ago.

He had a private agreement set out which has been stamped by the courts, however, some of the terms do not apply. The only mention on the house was how proceeds from sale should be split. It seems some of the agreement basically isnt worth the paper its written on. It was agreed that I pay the interest only until the house is sold, then repay the outstanding 90k, the rest split accordingly.

Customer: replied 3 years ago.

I have just looked at the consent order that my husband had drawn up. The first two pages have paragraphs A -H under the heading of Consent Order. The last page has paragraphs 1-4 under the heading of By Consent It Is understanding is the only part that is binding is paragraphs 1-4 under 'By Consent It Is Ordered' would this be correct? If so, there is no mention of the house other than neither husband nor wife shall be entitled on the death of the other to apply for a provision out of his or her estate

No that is not correct I am afraid - did you get no advice on the Order - or attend a Court Hearing about it?
Does the Order specifically say that you only have to cover £90,000 of the mortgage?
Customer: replied 3 years ago.

No court hearing was attended, this was a private agreement drawn up by my ex's solicitor which was passed by the court without a hearing. I could not afford a solicitor. The 90k is the outstanding amount on the mortgage, as I am paying interest only, this amount is not going down. So when the house is sold the 90k has to be paid back, out of the sale, before the remaining is split between us. My question is, as he has just taken over 7k from the reserve/overdraft facility, will this affect the amount I pay monthly now or will that be taken when house is sold, along with the 90k outstanding, before the remaining amount is split. Basically, would the 7k be like an advance on his share of the house sale.funds

What is the exact wording in the order about the mortgage - this is the only way that I can be sure that the answer I give is correct.
I am very concerned that this Order was made without your having legal advice - what he has done in terms of withdrawing the money should not have been possible
Customer: replied 3 years ago.

Well I have been on to the mortgage provider today, they inform me that as the mortgage is in joint names, he still has access to the overdraft facility, which I also have. This has therefore increased the amount I need to pay each month, as I now need to pay the mortgage interest AND the interest on the £7,200 he withdrew and but into another bank account.

This is the Consent Order:.


A. Upon the husband and wife agreeing that the terms of this order are accepted in full and final satisfaction of all claims for for income, capital and pension sharing orders and of any other nature whatsoever which either may be entitled to bring against the others estate in any jurisdiction howsoever arising in relation to their marriage


B. - contents of house


C. And upon the husband and wife agreeing the neither of them has any legal or equitable interest in the property or assets owned by the other except as provided for in this order


D. And upon the husband and wife agreeing and undertaking that

(a) The matrimonial home and the mortgage secured thereon shall remain in joint names and that

(b) The husband relinquishes any right of occupation of the property with the wife having sole rights of occupation pending sale of the sale of the matrimonial home as set out below.

(c) The wife shall pay the monthly interest payments to the lender with regard to the main account and will keep the home in good state of repair and properly insured at her own expense.


F. And upon the husband and wife agreeing and undertaking that in the event of the wife remarrying prior to the youngest child attaining the age of 18 then

(a) the wife shall have the option to buy out the husbands beneficial interest in the matrimonial home by way of payment of a lump sum representing 50% of the equity (calculated as the market value as decided by an independent jointly instructed valuer paid for by the wife less the main account mortgage balance) and by having the husband removed from his covenants under the mortgage and the husband would in return transfer his interest in the home to the wife. Such option to be exercised within 56 days of wifes remarriage.

(b) in the event the wife does not exercise the option set out avove then the matrimonial home should be sold forthwith and the net proceeds divided equally between the parties.


G. and upon the jusband and wife agreeing and undertaking that in the event of the wife not remarrying prior to the youngest child attaining the age of 18, then on that date the home shall be sold forthwith and the net proceeds divided between the parties as to 60% to wife and 40% to husband.


H. and upon the husband agreeing that he shall pay £350 per month by way of child maintenance to his wife.




1. The husbands and the wifes claims made or deemed to have been made for periodical payments, secured periodical payments, lump sum, pension provision and property adjustment Orders do stand dismissed and neither the husband nor the wife shall be entitled to make any further application in relation to their marriage under the Matrimonial Causes Act 1973 9As amended) section 23 (1) (a) or (b), section 24 and section 25 (A) to (D).


2. Pursuant to the Inheritance (Provision for family and dependants) Act 1975 S.15 the court considering it just so to Order neither husband nor wife shall be entitled on the death of the other to apply for an order for provision out of his or her estate.


3. There be no order as to costs insofar as this application and the negotiations ancillary thereto are concerned.


4. Liberty to apply as to implementation and timing of the terms of this Order


Well thats the order in full

When was this sealed by the court?
Customer: replied 3 years ago.

there is actually no date on it, it has the Bristol County Court stamp, but the actual 'day of' has been left blank, before the year 2012 part. I signed it 28/8/12, so it would have been shortly after that

I know I am being repetitive - but I am concerned at the potential financial situation - were you legally advised on this Order and if not may I ask why you accepted it
Customer: replied 3 years ago.

I had no legal advice as I was not eligible for Legal Aid. I had just changed jobs, there was a delay in my wages from my new employer. Also, at the same time, my son had just turned 18, which changed the child benefits, council tax, etc. All my income and outgoings were not consistent so I had no way of showing my financial situation until things had been sorted out. My ex husband was putting a lot of pressure on me to sign the agreement, as he had already changed it at my request, and gave me a 10 day deadline which included a Bank Holiday Monday. During this 10 day deadline, I tried to contact my solicitor on several occasions. I had one telephone call from her secretary saying she could not take on my case as she didnt have all my income details. I then said I was prepared to go private, just to get the order looked at, but had no reply. She was then off work due to a family bereavement so I was left no option but to sign. If I didnt sign, he was going to take me to court and threatened that I would have to pay half of everything, which I could not afford to do. I tried to explain my situation to my ex, but he was not interested. I was under a lot of stress at the time, I had been made redundant, done Jury Service, started a new job, along with all the stress of going through divorce, this was a very hard time for me

When the application was put into the court - had your solicitor countersigned it at all?
Customer: replied 3 years ago.

No, I didnt get to see any solicitor about the consent order at all. I only saw her at the beginning of the split, for 1/2 hr free advice when she tried to work out if I was eligible for legal aid, and I was not according to the details I had at the time. When I tried to contact her later, regarding the consent order, was when the confusion happened, I didnt get to see her again, despite leaving several messages with her secretary, then she went on bereavement leave and it was too late, my 10 days were up

Hi Elaine
As you may realise I am very concerned about this situation.
After the application was sent to the court did the court write back with a hearing date for a short hearing?
Customer: replied 3 years ago.

I was under the impression that there was no hearing as such, it just went to the courts to be looked at and stamped. Do you mean that I should have been notified of when the hearing was and I could of went to the court and attended the hearing? That is not what I was led to believe. However, I was not in a very clear frame of mind at the time, I will check back through my paperwork to see if I have anything. All I can remember is having a letter through saying the date the divorce had been granted

In most courts where one of the parties is not represented the Court will list a short hearing so that they can be certain that the unrepresented person understand the nature of the order and that it cannot be changed.
The fact that it did not happen, that the order was from what you have said barely fair, AND the fact that the order was in adequate as it did not ensure that your ex could not take any further monies from the mortgage account ALL give me cause for concern.
The starting point is to write to him and ask him to account for his actions and to confirm that he accepts that he alone is responsible for repayment of that money.
Tell him that unless you receive confirmation of this within the next 14 days you will seek advice as to the possibility of revisiting the Consent Order on the grounds that you received no legal advice as to its contents.
At the same time I suggest that you contact the court and ask for a copy of the Application and confirmation as to the practise of the court when one party is Unrepresented
I hope that this is of assistance - please ask if you need further details
Customer: replied 3 years ago.

Hi Claire,

Many thanks for your help, I really didnt know where to start with this. So, to clarify, I should have been informed by the courts of a hearing date? The contents of the order are not fair and if I had a solicitor check it, she would have advised me not to sign? I do not have his address to write, so will have to send it to his parents home. As we are not on speaking terms at all, I am sure that he will simply ignore any correspondence from me. So, are you saying, if I follow your advice, there is a chance the consent order can be changed? Will I need to get a solicitor then? Can I also ask, in your opinion, which sections are not fair.? I was not happy at the time, but he convinced me that if it went to court I could end up with less than he was offering and it would cost me thousands too

Customer: replied 3 years ago.

Hi Claire I have just found my Certificate of Entitlement to a Decree

and it states : Take notice that the Court has fixed the 10th Aug 2012 at 10.00am for the pronouncement of a decree by a District Judge - address

Note: Unless the decree or any of the orders is opposed, it is unnecessary for any party to appear at Court for the pronouncement.

Any party to these proceedings may be heard on the question of costs at the hearing. A party will not be heard unless he or she has served notice of his or her intention to attend the hearing and to apply for or to oppose the making of an order for costs not less than two days before the hearing.


That was the divorce and the only notice I had for any kind of hearing. The consent order, I signed and dated on 28th Aug, and I received back a copy with the covering letter on 20th Sept. Just looking back through the papers I have, I see it says I should have read a 'fully completed Statement of information for a consent order from the petitioner and that I have made full disclosure of all relevant facts' Would this be the consent order itself, or something else I dont know about?


Many thanks


Just to check - am I right in thinking you cannot afford to take face to face advice on this?
Customer: replied 3 years ago.

No, I cannot, especially now as I find myself with a higher interest to be paid on the mortgage due to the 7k he took, also my child maintenance has gone down to £5 a week due to him being on sick leave, and my electric bill has just doubled to £133 a month and I do not qualify for legal aid

There is a possibility - no more than that - of the Order being set aside - on the basis that you did not understand that it was final and you had not had full financial disclosure and that you were forced into it.
I cannot promise success - but there is a chance and you can use the excuse of what he has done as the reason for doing it
Customer: replied 3 years ago.

Sorry to keep asking, but your advice is still that I write to him first, and still contact the courts? Then try to get legal advice? Do you know if this is something the CAB can help with?

Thank you

The CAB are unlikely to be able to help you with this I am afraid
I would certainly check what the practise of the court is with regard to Consent Orders where one party is unrepresented
Once you have that information then you will be able to decide what your next step should be.
The letter to your ex should also be sent - if only to discover what his response will be
Once you have this information then you can decide if you wish to take the matter further with a solicitor or not
Clare and other UK Property Law Specialists are ready to help you