Will informal separation mean husband still owns part of our home?

Q&A: Banks will not agree to removal of mortgage holder’s name without repayment or court order

I’m looking for advice. I’m separated six years. My husband moved out of the family home nearly six years ago. He stopped paying the mortgage a year ago and I pay it in full on my own.

We have three children who reside with me full-time. He pays €120 a week maintenance agreed by himself and me, but not legal yet.

Is there a way of removing him from the mortgage and put it solely in name. Also, has he claim to the house when it’s sold and, if so, would he be entitled to half? We were married for 10 years during which he paid the mortgage and I paid everything else.

Ms C W, email

I think you need to formalise your situation. Break-ups can be traumatic events and the adversarial nature of court proceedings often makes this even more difficult, miserably (and expensive) for both parties.

So there is always the temptation to hammer out an arrangement between yourselves, especially in situations where the break-up is reasonably civil. And, in your case, fortunately, you have been able to do that. With children who would have been very young at the time, being able to reach agreement would certainly have reduced the discord and friction in the home at the time.

However, personal arrangements are precisely that. They have no force of law.

And that is going to present a problem if you attempt to have his name removed from the mortgage.

Put simply, there is no way the bank will agree to it.

You can see it from their point of view. As it stands, they have a binding mortgage contract that holds both of you responsible for the payment of the loan. And, as they see it, not unreasonably, a break-up means all parties are likely to be stretched more thinly in financial terms as they try to support two homes rather than just the one.

The fact that you have been paying the mortgage successful over the past year since he stopped contributing to it is commendable but will make no difference to the bank’s position. I have seen enough such cases cross this desk over the years and I have yet to see a bank willingly surrender the security of a second mortgageholder after a relationship breaks up.

Ownership

And if the bank will not remove his name from the mortgage, or sanction the removal of his name from the deeds of the property, the likelihood is that he could claim a share of any proceeds from its eventual sale. As it stands, he is half-owner of the property.

I’m not saying he would press the case, but he could do so.

Problems could also arise if your husband went looking for a mortgage on another property. Any lender assessing his suitability would likely turn him down on the basis that he already has obligations on this loan.

That could see him applying pressure on you to sell the home so that he can approach a lender unencumbered.

Clearly this has not happened to date but you have no control over when it might become an issue.

The only way to sort this out is to get a formal deed of legal separation, if not a divorce.

Separation agreement

This does not have to be a massively expensive process. And, in a situation like yours, where there appears to be the bones of an accord, it should not be unusually stressful or prolonged.

Normally, both parties will hammer out terms of the agreement at mediation. Assuming they can agree, they sign a document known as a Note of Mediated Agreement which sets out the terms of their discussions on anything including division of parenting, financial arrangements including maintenance, accommodation etc.

However, this is not a legal document in itself and you will need a legal imprimatur to persuade a bank to act. This is done by applying to, generally, the Circuit Court, applying for agreement to be turned into a deed of separation as part of a decree of judicial separation.

The reason for doing this is that the court can make legally enforceable orders on all sorts of things, such as arrangements for custody of and access to children and maintenance payments, but also the transfer of property formally.

And that is important if you want to force the bank’s hand into removing your husband’s name from the mortgage and from the deeds, which would affect who gets what on any eventual sale.

Of course, if you cannot agree, then things get more complex and, ultimately, it will be for a court to rule on who stays in the home, whether they get ownership of the property (and the mortgage on it) etc.

It also gets more expensive so it is certainly worth sorting it out between yourselves or at mediation and just getting the court to recognise the formal deed of separation.