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Topic starter
16/10/2019 9:26 pm
I would be extremely grateful for any advice.
My ex-wife separated in Oct 2011. She moved out in May 2012 to live nearer her father. Since then I have been paying mortgage on our jointly owned property which was taken out in May 2006. This was agreed amicably as she was incurring rental costs in her new accommodation. We have a daughter who is now 13.
As you can imagine, a lot has changed over the past 7 years. Our divorce was confirmed this year. My ex has a new partner and I earn considerably more than I did when we jointly took out the mortgage (as does she). After the divorce she suggested I re-mortgage in my own name to free her up to buy a property with her new partner. She was not seeking any equity from the re-mortgage.
You can probably see where this is going...My remortgage was approved by my/our existing lender but midway through conveyancing my ex wife's TD was flagged with a start date of Jan 2018. My ex says it runs for 3 years.
I was advised I would need to get a solicitor to discuss with her trustee but cant get straight answers from solictors and ones Ive contacted seem reluctant to take this on. The latest advice I received was I really have no place contacting her trustee, she would need to do this directly or through a solictor.
She is willing to do this, however reading uo on TDs on this forum and elsewhere poses me a few questions -
I'd imagine the trustee will seek to recover some equity?
If so will this be equity to value if the agreed loan (£7K over redemption figure) or full equity to valuation (the bank did a desk valuation which im pretty sure overstates the realistic value of the property)
Does the fact that my ex wife has not resided at or contributed to the mortgage for more than half the current term of the mortgage have any bearing on the equity she (and by extension the TD) would be entitled to?
And finally, if the trustee is alerted to this is it something he/she can then pursue even if I choose not to go ahead with the re-mortgage (my daughter resides equally with myself and her mum, retaining the family home provided stability in a difficult time).
My ex wife says the house was discussed as part of the TD but I was never approached by the trustee regarding this matter and have no detail on what was agreed other than it apparently beimg over a period of 3 years and seemingly (up to this point) not affecting ownership of the property in joint names.
17/10/2019 9:29 am
Welcome to the forum TonyB.
When your ex-wife signed a trust deed her assets (including equity in property owned) "vested" in her trustee. Essentially, she made her assets available to help repay her debts.
There should have been a discussion about exactly how her assets would have been dealt with before the trust deed went ahead. This plan should have been put in writing. This plan would only include the assets that were disclosed to her trustee.
Perhaps your ex-wife would agree to show you this plan? You'd then have a sense as to whether her trustee was made aware of this property.
A bit of a side issue, but trust deeds now run for a minimum of four years.
I would strongly consider contacting her trustee to try to find out what's going on from their perspective. You have a very significant interest in this situation and every right to know where you stand. A trustee is likely to find out about any properties that haven't been disclosed to them.
The trustee will primarily be interested in the legal ownership status of the property. If there's been no formal transfer of ownership, they could potentially look to gather in her full half of the equity that exists in the property.
You do of course have arguments that you can make that she has not contributed for some years. This might be helpful with respect to any negotiation (if it happens) with her trustee.
Qualified Debt Adviser & Forum Administrator - Ask me anything about Trust Deeds 
17/10/2019 9:43 am
It would certainly be useful to find out what the trustee agreed in respect of the property when the Trust Deed was signed. Can your ex-wife check the paperwork she has from that time?
If the trustee was aware of the property then they should have assessed the equity and discussed how it would be dealt with prior to her signing up. If so then it may be relatively straightforward to get their agreement to sign the house over to you.
If your ex hid this information from them initially then it could be a more difficult financial negotiation in order for them to agree to transfer the half share to you. The fact that you have been paying the mortgage for so long may be helpful in such a negotiation, but ultimately it may boil down to how tough a line the trustee decides to take and how willing either side may be to fight it out in court. I assume nobody really wants that, which should work in your favour when coming to some sort of agreement.
Scottish Debt Solutions Expert - Ask me for help setting up a Scottish Trust Deed or Debt Arrangement Scheme plan.
22/10/2019 2:48 pm
Hi TonyB,
Sorry to hear that you have found yourself in this situation.
When it comes to a Trust Deed as Kevin has pointed out any equity in a property needs to be established prior to entering into the plan and then an agreement reached on how this would be dealt with.
I’d suggest reaching out to your ex-wife’s Trustee about this and to find out more about what was agreed with your ex-wife. In a situation like this communication is key and a phone call or email will help.
Once you reach out to the Trustee to find out more let us know and we can hopefully help you further from there.
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