A common question we get asked following marital separation is whether an x-partner, who is not occupying a jointly owned property can be enforced to pay their share of the mortgage. Apart from the emotional side, it can be difficult and it is always advisable to get a lawyer.
Here though, we look at a few points to consider regarding your mortgage arrangements.
Who’s responsibility is it?
If the property and mortgage were contracted in joint names, then technically both parties are jointly liable to keep up the repayments, including interest, according to the terms of the mortgage arrangement.
Frequently, at times where separation or divorce occurs, one of the couple leave the property and frequently they also stop paying their share of the mortgage, leaving payments down to just one of them.
Depending on how mutual the split is often dictates where proceedings go from there.
The reality is though that the mortgage lender can pursue either or both the named borrowers should there be any defaults on the monthly direct debits.
And, this could, affect either or both of the credit ratings of the named borrowers.
Get a financial order agreement
Apart from getting a specialist family law solicitor to help you through the process, you can look into putting in place a financial order following divorce, which will detail the future financial arrangements.
Not everyone thinks to do this, however, it can save significant trouble brewing for a later date as occasionally, court cases pop up many years following divorce, simply because the details hadn’t been clarified at the time.
Transferring the mortgage
One solution, to settle matters outside of the courtroom is for the property and the mortgage to be transferred into just one of the couple’s name – typically “the occupier”.
This is subject to both parties being amicable to this new arrangement and the mortgage company agreeing it is financially viable for them as a lender, as this involves relying on just one person’s income to ensure repayments are made – essentially the risk is higher for them.
Often though, if repayments have been made consistently, and, as it relevant of many cases, the person staying in the house is actually covering 100% of the mortgage repayments anyway, there can be some flexibility on remortgaging under these circumstances.
Court proceedings
If co-operation is not an option, then there is the “going to court” route, which is clearly more costly and can be lengthy.
There could be some justification if you have been paying the entire mortgage alone that over the months following divorce you have in fact acquired more than a 50% share of the property. This would likely depend on whether the mortgage is interest only or a repayment mortgage.
An application could be made though with the court under this premise though and aspects like this would be factored in with the judge’s decision.