SA How to Remove Ex's Name off the Mortgage Papers?

[twowrongs]

My son and his partner at the time bought a house in 2015 and my husband and I are the guarantors for them - We live in SA.

My son's partner walked/ moved out 3 months later (2016). My son has been paying the mortgage payments since but on the mortgage papers, the ex-partner's name is still on there. My husband and I really feel it is becoming a strain for our son to keep paying and support his 3-year-old son and paying bills as well.

What is the procedure for our son to either one take her name off the mortgage papers and two, think about selling the house? Does he have to speak to the ex and inform her of either, and if/ when he sells the house, how does it work with what?

The ex did not contribute mortgage payments. Does her half of payments get either added on if there is a loss? Or does it get taken off if there is a profit?

Our son is talking of doing up his bathroom and extending his shed. Is this advisable - because it would probably add more value to the house and clearly she does not deserve anything. We know in the eyes of the law the ex can have half? But when they bought the house and applied for mortgage, the ex had nothing to put into the funds. It all came from our son's previous house and his savings.

 

[Victoria S]

As far as separation of assets go when a relationship breaks down, it is up to the parties to the relationship (your son and his ex) to agree on a settlement between them. They can then have this put in an agreement or court orders so that the parties have to abide by them. Contrary to popular belief there is no "right" in Australia of an ex to get "half".

If they can't agree on a settlement, - they may be able to apply to the court to determine the issue between them. This will depend on whether they have been in a relationship for 2 years or not and whether they have a child together etc. The court will take into account all the circumstances and determine what is fair and reasonable having regard to the financial needs of the parties and their respective contributions to the relationship.

Taking a name off the title also means name off the mortgage. Sometimes this means that the bank will require the remaining mortgage holder to apply for the loan again themselves. Some duties and charges relating to transfer of title into one name can be avoided if you have a settlement agreement or court orders to prove its a family property settlement.

 

[Tim W]

The asset and the debt secured by the asset are different things.

First thing your son should do is talk to the lender to see if the loan contract can be re-written.
But don't actually sign a new contract immediately.
He should make an appointment and sit down in a physical branch with a manager-level person from the lender. He should not waste time with loan salesmen, let alone try and get any sense or truth out of a a third party overseas call centre.

Releasing her from the loan can form part of the property settlement.

Your son would be well advised to get a lawyer - this stuff is not DIY.

 

[sammy01]

Is the ex's name on the title of the house? Most likely it is. So the only way to sell it is with her signature. The only way to get any proceeds from the sale released is with her signature. Now if she refuses to sign or claims, she is entitled to half/ some of the profits things get messy.

Really the opinions you get from here or anywhere depends on the facts. The biggest fact is whether or not her name is on the title rather than the mortgage.

 

[twowrongs]

Hi sammy01

When you same name on title of house how do you mean?Do you mean on Revenue SA Bill, cause if so, then yes it is on there. Her name is also on the mortgage loan through the bank.

 

[sammy01]

So I think it is different in each state. So the title for ownership of the property is registered with the authorities. Who owns the house? By the sounds of the thing, she legally owns the house to the same extent as he does So the mortgage is a loan contract with the bank. The title is a contract with the state govt around who owns the land.

So what is the place worth? How much is owed? How good is the relationship between him and the ex? It is possible to get consent orders written up that transfers full legal ownership to him. But only if she agrees. She will need to get legal advice here too. That is a lawful requirement. And that is where it is gonna suck hard. See a solicitor will tell her that she has a legal claim on the joint. In short, she is likely to put her hand out and say give me money.

Best bet is to sell the joint. Depending on the equity in the place and the nature of the ex, things are gonna get messy. Do not delay. The longer he pays, the more equity and the more she is gonna get and he is gonna lose. The problem is that getting a fair settlement via a court case may prove more expensive than just handing her some money.

Again, it is all about crunching the numbers...offering her a $5000 pay out for example might be the cheapest way to go. But do it through a solicitor. You give her $5000 cash she could go use that money to hire a solicitor to hit you up for $10 000. Doesn't sound like much fun...