Charlotte Tyrer – Trainee Solicitor in our Family department – discusses Court’s decision to permit ex-wife to challenge terms of order agreeing sale of family home to repay mortgage

The UK Supreme Court has given a divorced woman permission to challenge one of the terms of her 2010 final Order that relates to the division of their assets on divorce.  The Court Order included a fairly common provision whereby the wife promised that she would release the husband from paying the mortgage on the matrimonial home within 2 years of the original Court Order (i.e. by 2012).  This would have either involved the wife raising funds to buy the husband’s share of the house or selling it to redeem the mortgage.

The Wife initially made an application in 2011 to postpone the release of the mortgage from 2012 to a later date, but this was refused by the Courts on the basis that the Court was reluctant to interfere with the final Order that had been made with the consent of both parties.

The Wife pursued the matter to the UK Supreme Court arguing that she should be released  from the promise to release the husband from mortgage payments on the basis that she cannot raise funds to pay the husband and she is reluctant to sell because the children go to schools nearby.  She argued that the UK Supreme Court did have the power to vary the original Order and she asked for the release to be put back until 15 August 2019 when their son reaches 18.

In a majority judgment, the UK Supreme Court agreed that the Court has the power to vary the Order and they have sent the case back to the High Court to urgently deal with the issue about whether the release date can be put back.  The High Court will have to consider the best interests of the children and balance this against the husband’s need for the property to be sold to release him from the mortgage.

This decision might cause some concern for individuals who have similar provisions in their final Orders about mortgages being released at a specific time in the future.  It may result in other individuals to ask for the date to release of the mortgage to be postponed, leaving the other party potentially in financial difficulty if they are still responsible for the mortgage beyond the date that had been agreed at Court.

We will keep you updated as to developments in the matter and the outcome of the case at the High Court.  If you have any queries or concerns about existing Orders relating to divorce, finances or children matters, then please contact one of our Family solicitors, Caroline Bilous or Kirsty Morbey.

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