Divorce and payment of the mortgage

When a couple resolve their finances on divorce, often one remains in the former family home with the children. This will sometimes lead to a problem that although they can afford to pay the mortgage, the mortgage company won’t remove their spouse from their obligations.

What to do?

Over the years courts have routinely approved undertakings (a promise to the court) that one party should pay the mortgage and provide an indemnity to the other giving them some degree of protection.  However, a recent judgement given by Mr Justice Mostyn in CH v WH(2017) EWHC 2379 and approved by the President of the Family Decision has now confirmed that the court very clearly has the power to make an order not only that one person should pay the mortgage but that the other very clearly has indemnity should payment not be made.

This was the view given by the Financial Remedies Working Group in its final report of December 2014, namely that these undertakings should be routinely made as orders to offer the protection and security that is often needed.

The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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