Mortgage a Risk Ex-Wife Should be Allowed to Take

When a marriage breaks up, the matrimonial home is often the subject of considerable dispute and it is common for an order to be made for it to be sold and the proceeds divided between the divorcing couple.

Recently, a case was heard in which a wife wanted to retain ownership of the family home after the divorce, leaving the existing mortgage in place. The judge agreed that she was entitled to do so, but her application was unsuccessful because he considered that she would not be able to pay the mortgage. The judge also refused to transfer the property to the husband (who also wanted it) because that would have deprived the wife of her entitlement to it. The situation was complicated by the fact that the property had also been used as security for the husband’s business borrowings.

The judge therefore ordered that the property be sold and the husband continue to pay the mortgage pending sale. The wife appealed against the decision.

The Court of Appeal overturned the ruling of the lower court, allowing the wife to retain the home. In principle, the interests of the children are paramount. If the wife was willing to take the risk that she would be unable to meet the mortgage payments, she should be allowed to do so.

Click here for information on how the existence of a family property affects divorce cases.

Published: 15th January 2011