How to deal with an ex-husband trying to sell the family home?

A close friend is separated from her husband for a few years now. It was a very difficult separation with different services involved. They eventually agreed basic terms of separation through mediation.

She stayed in the house, pays mortgage and debts and has managed all things related to the children since the separation. For the first few years, he contributed a sum towards child costs each month but this became unreliable and has now stopped completely. It is not an option to try to engage with her former husband. His income is also very limited and she accepts this fact.

The main issue is that he continues to exert control by refusing to take his name off some utility bills and, more pressing, refuses to sign any documents, so the fixed rate mortgage is about to jump to a higher variable and money is very tight already.

As part of the separation agreement, they agreed she would stay in the house until the children are finished university but he wants them out to get his share of the house and so he is adding to her costs where possible.

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She is just above the threshold for any State supports and cannot afford huge legal fees, which he knows too.

All bills and the mortgage are paid by her from her own resources. With this in mind, can banks allow the fixed rate with one signature if in best interest of a family, or is her only option to sell the family home if she can no longer afford the higher interest payments?

Also, if they sell, will a court agreement take into account that, even before the break-up, she had been the only person paying the mortgage?

Mr J.M.

It is clear from your question, which I have edited back quite significantly for the sake of the privacy of the people involved, that this has been a very difficult experience for your friend.

The brutal truth is that even in the most harmonious cases, financially, both sides almost always lose out in separation if for no other reason than they now have to manage two homes with associated bills, etc. Where there is ongoing dispute or pressure – especially on financial matters – the stress involved can be extreme, affecting everyone concerned, including the children, who are generally more aware of what is happening than people assume.

Your friend’s position is clear. She is on her own financially; she cannot depend on her former husband for any financial support, even for the children. Her issue is that, despite this independence, she is inextricably tied to him by virtue of legal contracts they entered into while a married couple. And her fundamental problem is that the mediation they went through does not appear to have addressed this.

The big issue, as your friend is discovering, is that the note of mediated agreement... has absolutely no legal standing in its own right

Mediation can be a really useful process in allowing couples to manage decisions about children, the family home, finances and the future in a separation. Depending on what the two parties want, a mediation agreement can cover some or all of these issues.

The big issue, as your friend is discovering, is that the note of mediated agreement – the written document pulled together by the mediator and signed by all parties at the end of the process – has absolutely no legal standing in its own right.

I’m a bit at a loss as to why the husband’s name would remain on utility bills. It seems fairly fundamental that even a basic agreement which envisages one party carrying all financial responsibility for those bills in the future should ensure they are in the name of that person.

More importantly, either the agreement is silent on how specific issues such as agreement on securing best available future mortgage rates are addressed, or provisions in the agreement to cover the area are being flouted.

Given that a mortgage is generally a family’s highest financial burden and it would have been clear during mediation that a fixed-rate mortgage would come to an end at a set point, it seems incredible that the issue would not have been addressed. But without legal backing there is nothing to stop one side or the other making life unnecessarily difficult.

Court order

You say the former husband’s motivation is to force a sale of the property even though the agreement declares it should not happen until the children leave third level education, and his behaviour is deliberately inflating her costs. Perhaps so. Maybe there are other motives. We don’t know but quite frankly, it is tough enough for couples at odds to enforce court-ordered solutions. Securing compliance with what are essentially informal statements of intent in the absence of goodwill from any side is simply impossible.

No bank is going to arbitrarily breach a contract at the request of either party. Both have signed; the bank has security against both

I see no solution to your friend’s dilemma other than securing a court order in relation to the property or the mortgage. Yes, it will cost, absolutely. But there is a financial cost in your friend’s current position, with the added harm of the ongoing and extreme stress she is having to cope with.

For what it is worth, no bank is going to arbitrarily breach a contract at the request of either party. Both have signed; the bank has security against both. If it allows one side to unilaterally make decisions, it runs the risk of being pursued legally by the other side.

You make it clear that there is no point in even attempting an informal approach to resolve the issues involved. That means a formal approach is required. She needs a legally binding deed of separation. And, if the husband is not willing to sign a deed voluntarily, you are looking at a judicial deed of separation or alternatively a divorce.

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Given that a judicial deed of separation involves disagreement between the parties, it will inevitably cost more to secure, and the more entrenched the positions of either or both parties, the higher those costs.

If the mediation agreement does cover the issues of agreement on mortgage costs and/or the sale of the property, it can be presented to the court as part of any application.

Going the legal route will not necessarily involve the sale of the property, though that cannot be ruled out. And yes, the court will consider who has been paying the mortgage up to now and any other financial and non-financial issues of the family concerned.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice