Advice! - separation, conveyancing, costs

[JuneBug]

Thanks for your reply.

We have asked the court that if she is unable to buy me out, that the house just go on the open market. We do not have children together, I have a child of my own however and would like to be off that mortgage so that I can obtain a new one and provide somewhere for me and my kid. We are in an expensive rental at the moment which is not a long term solution.

Should the court make an order that I must remain on the house/mortgage until she can raise the funds, or that she can have the house but I retain a charge over it, would there be a time limit on this? Or would I have given up the house and she potentially never pays me back?

I'm never sure what my solicitor is on about to be fair, she changes her mind a lot and when I query things, she is dismissive and rude. For example, today's email began "whether you can understand this simple fact or not..." when I asked her to just explain the whole... Paying her future selling costs thing.

Thanks again,

JB

[JuneBug]

Also, unsure if this is relevant or not again, but this isn't a divorce. We were never married. The court also said they will view the case as "business and probate" not "family" (according to solicitor, however as I've said, she gets things wrong and I don't really know what this means anyways) if this is relevant?

[Peridot]

Ah ok, think we need to go back a step or two.

The property is owned by you and your ex and not a business entity, isn't it? No-one has died have they? It does seem a little confusing and maybe we've not got to the bottom of the issue at the moment. Sorry to ask for more information from you but it is important that we understand what the facts are to be in a position to give you any pointers or try and explain why the solicitor is suggesting what they are.

Do you know what the application is called, that has been made to the Court? Did you make the application? Do you know what the application is asking for?

When you purchased the property I assume there was no Deed of Trust entered into by you and your ex, setting out how the property would be divided in the event you split up?

Does your child live with you?

I wonder whether, as your ex has been refused a mortgage, the application is purely to deal with ordering the property sale, which can include instructing an expert to provide a current valuation (which may be sensible) and dividing the proceeds.

Unless your ex comes up with a mortgage offer that deals with both taking over the property, releasing you from the current mortgage and increasing her new mortgage sufficiently to pay you your share, I am unsure how else it can be dealt with other than to sell the property. In which case your contribution to half the costs of the sale would be appropriate.

We'll wait to hear your response and hopefully we can get you pointed in the right direction. Did you say you were seeking advice from another solicitor today? Have you done that or are you going to?

[JuneBug]

No problem, sorry if I'm unclear, the whole thing is confusing tbf
Property is owned by me and ex
Noone has died, we just split up over a year ago
My child lives jointly between me and my (other) ex
No deed of trust
No idea what the application is called, all I know is it requested that I either get half the equity or house is sold. The solicitor submitted this. Initially it also asked that ex pay my costs, but now solicitor is saying she won't ask for this?
There was an order after the first court hearing that a joint paid valuation happen, however ex refuses to pay half (even though we did explain to her what "joint" means), and when I said I would pay for all of it, she said I couldn't go round to the property anyways thus pointless. She also tells every estate agent that goes round that she will rip the kitchen and bathroom put so can they base their valuation on this.
I asked my solicitor if she would keep these emails to show the judge so we can explain why we have failed to meet the terms of the first order, and show we tried to get the valuation (and even pay for all of it) but the solicitor says she isn't interested (and seems to think it's just petty squabbling) . I'm now worried I'll be penalised somehow for failing to comply when it isn't my fault?
Paying half of selling costs if the property is to be sold is totally fine, I've offered this from the get-go. It's giving her half the estate agent fees for a fictional future estate agent if she sells the house in the future I have an issue with. Once it's her house it's nothing to do with me right? I've also said I'll pay half of the legal costs for the transfer of equity if needed, although ex does seem happy to pay for all of this if I agree to not have any equity (lol) in return.

Hope this helps, thank you once again

JB

[Peridot]

Ok, it sounds like an application has been made for an order to sell in which case the inclusion of selling costs is appropriate, if a mortgage for your ex has not been approved (which seems to be the case currently). If an order has already been made to obtain a joint valuation then it seems that your ex has not complied and is therefore potentially in contempt of the Order (depending on the exact wording of the Order), which won't go down well with the Judge at the next hearing.

In any dispute it is expected that people should try and negotiate a settlement so I wonder whether this is what your solicitor is trying to do to try and demonstrate that you are being reasonable. Without knowing all the ins and outs it is difficult to be certain. You mention that your solicitor was discussing an offer (which included the sale costs) so I suspect an offer is what she is thinking. When weighing up the cost of continuing down the Court route until a final order is made (and potentially enforcement proceedings in addition if the order is not complied with) and the potential loss to you of footing the bill for the sale costs I wonder whether it is worth it to see an end to this really difficult situation. Bearing in mind the difficulties you are having with your ex and the fact she is at the property and refusing to comply with orders etc this would seem a possible option.

When it comes to the final decision of the Court should this matter go all the way to a final hearing, the offer won't be known to the Court until such time as the order is decided and the subject of costs are discussed. There are different types of offers that can be made to your ex, some of which have consequences in relation to costs if the Court decision was more favourable to you than the offer that was made.

It certainly seems there have been difficulties in trying to deal with the last Court Order made. From what you say it doesn't seem things will be any less problematic. It sounds like there is a lot of history during these proceedings that is preventing you both from settling things once and for all. Can you show that you have tried to do everything you were ordered to do by the Court?

Do you think your solicitor would clarify things for you if you explained that you're worried that whatever order is made by the Court she won't comply and what happens then? Maybe by explaining your concerns and asking if she has any ideas how the order could be complied with when the other side seems to be intent on frustrating things she may be able to explain things more clearly? You need to understand what she is proposing and the consequences to you of doing so. I don't think that is unreasonable. You need to know what the potential difference in the costs of going to final hearing and agreeing a settlement (even if it means you agree her sale costs whether or not she sells). Ultimately if she can't get a mortgage I don't see what option there is but to sell, so the argument over including sale costs or not is immaterial really.

Sorry not sure this has helped you particularly but you do need to find out whether the solicitor is advising you to make an offer to settle and whether this is also a tactical move to assist your claim at the final hearing when the costs question is dealt with.

[JuneBug]

Thank you for your help. I'll try and chat to the solicitor again, that's hard to do without incurring her wrath tho (eek!)

I've also contacted a few new solicitors and will try and get consultations in the week.

I feel like the solicitor just wants me to accept a low offer now so she can get paid quickly and be done, whereas I know if the house went to sale and I was awarded 50% by the judge it would be a huge sum to me (we're talking a 25k+ difference) I'm already out of pocket enough with having been the one to move out and start fresh (I wasn't allowed to take any furniture, appliances etc when I left) and I really don't want to hand ex more stuff for free you know? A few hundred either way wouldn't matter, but it's the difference between being able to start again easily, or have to start at the bottom with 0. Solicitor is proposing an amount so small I wouldn't even get my initial deposit back, although the house has increased a lot in value since then.

Thanks for listening, I appreciate that it must be difficult to answer questions from people who don't know a blooming thing lol

JB

[Peridot]

You're doing ok, you just need them to explain why they are suggesting the settlement they are. It seems your ex is particularly difficult! Of course any offer needs to be tempting to the otherside as well as being fair to both parties but always bearing in mind the cost of going all the way in Court when a Judge may not decide in the way you would want either.
It is so frustrating and galling when this happens in relationships. All I can say is once it's settled, even if it isn't quite the amount you would have liked, at least it is yours and a line can then be drawn.

[ostell]

So where did the deposit you made come into the calculation? I would have thought that the equity would be determined, the deposit subtracted from that and that is the amount to be divided by 2. Your partner gets that, you get that plus the deposit.

Have you thought of applying for the property for yourself as you need somewhere for you and the child to live? Man with dependant child trumps woman on her own.

When I was in a similar situation my wife changed the locks to stop me getting in. Talked to my solicitor who said I had every right to be in the property. After telling him what I would be doing I went to the property to recover items and had to break in. Neighbour called police and police quite happy about the matter and left me in peace. I changed lock and small pane of glass.

[JuneBug]

We didn't calculate that because from the start, my solicitor said the court would view who put what in as irrelevant, and it would just be a straight up 50/50 as both names are on it?

Is the deposit thing relevant after all?

[Peridot]

Hi all,

Just a quick post, t

he division of the equity would not necessarily include the deposit being returned to the person who paid it. There are other things to consider, such as whether the property was held as tenants in common with a Deed of Trust setting out how the percentages held or confirming who would get the 'deposit' back if a split happened, how long the people lived at the property and the amount of the deposit paid by one of the parties. Unfortunately never as straight forward as we would hope. Have shared residence of your child should be considered and yes technically while you jointly own the property you are just as entitled to be there as your ex is, although with the problems she has created with threats of non-molestation orders and the like, it may not be the wisest decision to go down this route.

That's the problem with moving in with each other we never think the relationship will end at that point and don't necessarily set out in a Deed how the assets would be divided on breaking up, which can so frequently lead to major issues when things do break down.

You will get there in the end and be able to draw a line and move on. Why is it karma seems to take so long to happen!

[Peridot]

Sorry think our posts overlapped, my slow typing and not looking at the screen but yep basically saying what the solicitor has said to you I'm afraid Junebug

[ostell]

I think the deposit is relevant. Others will no doubt correct me. You aren't married and this was a financial transaction between two people who want to end that transaction. If you split 50/50 on the eqyuity then you are effectively making a gift of 50% of your deposit.

The matter of who put what into the mortgage is probably irrelevant.

I think a new solicitor.

[Peridot]

Hi Ostell,

The presumption is a 50/50 split without evidence to the contrary ie a Deed of Trust or making a claim evidencing the amounts paid or activities undertaken above and beyond paying bills and mortgages etc. for example someone wielding lump hammers and building extensions themselves. Being a full time child carer is also considered these days but unless the deposit was a significant sum above the minimum deposit required imo it would not be a consideration in calculating the division.

It would be for the person claiming they are entitled to more than a 50% share to demonstrate that a trust situation had arisen, meaning the parties held an unequal beneficial interest in the property and therefore the presumption of 50/50 split did not apply. In a case in 2007, (Stack v Dowden) it was made clear that these situations are not

an opportunity for the court to impose what it considers to be a ‘fair’ division; the search is for evidence which establishes a joint intention (actual, inferred or imputed) that over time the presumed equal split would be varied.

Not an easy task for an individual. For future reference if couples are putting in unequal amounts or do not intend splitting their property 50/50 if the need arose, then Deeds of Trust do need to be prepared.

[JuneBug]

Thanks guys

I figured attempting to put forward a claim for more than 50% just opens the floodgates to pointless bollocks - I.e ex claims currently that all the increase in value of the house should be hers because she decorated it (ignoring that I and my family - all in the trades - did the complete renovation including wiring, pipes, extension, etc etc). Yes, I put in the deposit, yes I financed the work on the house and did the physical grunt work. But I really can't be bothered with the hassle of trying to argue in front of a judge that this is somehow equivalent to her running a paintbrush round and buying some new taps. It's embarrassing, you know? And to be honest, 50/50 is fine, it's what you expect to happen and anticipate happening when you put the money in in the first place. What's really getting me is that I will end up with less than 50%. I already said I don't want to argue about the "stuff", I.e I've let her keep *all* furniture, appliances, fittings fixtures etc etc - I've had to finance starting from scratch - literally didn't have a plate or a fork or a pillow to my name. She wouldn't even let me take my daughters bedroom furniture because "she" paid for it (with a joint card I paid off...)

So once you figure in not having any "stuff", my legal costs, this thing where the solicitor says I have to give her half her estate agent costs if she decides to sell in future, and that the true value is many thousands higher than the valuation ex is offering... I'll end up with around 8% and ex has 92%. Which is so, so frustrating. Especially when my initial 50/50 (plus she keeps all the stuff) offer was such a bargain for her when she didn't put a penny in in the first place you know? It's needless greed.

Sorry to rant!

[Peridot]

Good to rant sometimes, just hold the thought the offer is what's being suggested by the solicitor. From the sounds of it your ex is not going to be reasonable so may not even accept the offer in which case the Court's decide which would be a 50/50 starting point. I suspect the property will have to be sold and more than likely all divided 50/50. Keep going it will get sorted.