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Consent Order/ Change of name on Mortgage/deeds

including wills and probate
MummytoAlbie
Posts: 1
Joined: September 14th, 2020, 2:04 pm

Consent Order/ Change of name on Mortgage/deeds

#340207

Postby MummytoAlbie » September 14th, 2020, 2:27 pm

Hello!
My ex husband and I have just got divorced but silly that I didn't sort out the finances first! We are getting along well and I want to wrap this up ASAP, so I'd appreciate any advice.

He is willing to walk away from his 25% of the house (he moved out 2 years ago and I've been paying the mortgage since). He will walk away in lieu of Child Maintenance, which he is currently struggling to pay. That way I can remortgage at my leisure and use the money for my son if need be.

Does anyone know the simplest way to get this on paper so it doesn't come back to haunt me? I know of a consent order but not sure what else that needs to include? I want a clause to protect my son in case (worse case scenario) if I lose my job in the future. Otherwise, I just want a clean break financially.

I can get him off the mortgage easily, but I assume that doesn't mean he doesn't have a claim to the house 100 years from now!?

I would appreciate any advice.

Clitheroekid
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Re: Consent Order/ Change of name on Mortgage/deeds

#341594

Postby Clitheroekid » September 21st, 2020, 12:20 am

You firstly need to understand how the court works in these situations.

Essentially, the court has the power to make a wide range of orders that relate to the financial situation between divorcing couples. Their basic purpose is to achieve a fair outcome for both parties and their children, and in order to do so they have to look at each party's assets and liabilities, income and pension arrangements.

Either party can start the process by making an application to the court, and in most cases a negotiated agreement is reached. This is generally dealt with through lawyers, and involves both parties making at least basic disclosure of their respective financial details. If this exercise isn't undertaken it's unlikely that any subsequent agreement would be enforceable.

However, if there is disclosure and agreement is reached that agreement can be embodied in a consent order. This involves filing at court a summary of both parties' financial position along with a draft order, the terms of which have been agreed by the parties / their lawyers. The judge then considers whether it represents a fair outcome for all concerned, and assuming it does then the draft order will be sealed by the court. It then has exactly the same enforceability as an order made at the end of a full hearing.

The main reason for obtaining a consent order is finality. Most such orders are `clean break' orders, i.e. there are no ongoing obligations on the part of either party, so that except in very rare circumstances (e.g. fraud) once the order has been sealed both parties can be confident that there will be no claims in the future. In the absence of an order claims can be - and occasionally are - made many years, even decades after the actual divorce, so that the risk may be hanging over the parties indefinitely.

Preparing a draft order requires knowledge of matrimonial law and court procedures, and is therefore something that would normally be done by a lawyer. I don't know if there is online guidance about DIY orders, or how good it is, but if there are - as in your case - significant assets involved it would be frankly stupid to try and deal with it yourself. If you make a mess of it the court will simply reject it. They don't have the time or resources to help you to get it right.

If you have reached an agreement that is objectively fair and reasonable you may be able to find a lawyer that would act for both of you in preparing the formal consent order and arranging for it to be sealed. However, they would almost certainly insist that one of you obtained independent legal advice before it was finalised. It's also possible that one of the many online divorce services could arrange this at a reasonable cost.

He is willing to walk away from his 25% of the house

I'm not sure I understand this. Assuming you've been married for a few years the starting point would be that he would be entitled to half the equity in the house. However, you're both obviously free to agree whatever you are happy with, and if he's content to relinquish any claim to the house then that's fine.

He will walk away in lieu of Child Maintenance, which he is currently struggling to pay.

This is a lot more problematic. You may be willing to waive your claim to child maintenance, but if your ex takes legal advice he'll be advised that you can't legally do so.

This is because although the Court can dismiss claims by the spouse for maintenance it has no power to dismiss claims for child maintenance. Consequently, any such term that was included in a consent order would be rejected by the judge. And even though you may agree not to claim any child maintenance you would still in fact be able to apply for it through the Child Maintenance Service.

I'm afraid that if I were advising him I'd see the risk of you doing so as a fairly hefty risk, and advise accordingly. However, lawyers tend to work on a worst case assumption, and if he trusts you sufficiently he may be willing to accept that risk, in which case the agreement can still go ahead.


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