LAWLINK – Bank won’t sign over mortgage even though couple are separateed

white and red wooden house miniature on brown table

Q: My husband and I have been separated for almost four years and are at present drawing up a separation agreement. Things are amicable between us. My husband has agreed to sign over his share of the family home to me if I sign away my claim on his pension. We both agree with these terms. I have a full-time job and have been paying full payments of the mortgage for the past two years on time and there are no arrears.

Unfortunately, the Bank is unwilling to allow my husband to sign over the house and I don’t understand why because my husband lost his job 10 months ago and I am in a much better financial position than him.  This has led to tensions between us and now the whole issue of the separation is turning very acrimonious.

Is there anything I can do to force the Bank to transfer the property to me?

Dear Reader,

This question illustrates how the effect of our current economic woes can have very real impact on people’s domestic situations.

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It also illustrates how the attitude of the banks may prohibit the amicable resolution of family law matters, as in your case.  As we know, banks were only too happy to lend to couples on the basis of several multiples of joint income.  We are, increasingly, now seeing that joint owners, are prevented from rearranging ownership owing to the banks refusal to allow the transfer of the mortgage into sole names.

Even where one of the partners has lost a job and is not contributing to the mortgage, banks appear to take the attitude that two mortgage holders are better than a sole mortgage holder. Should mortgage repayments fall into arrears, with both parties still tied into the mortgage, the lender will have recourse against both.

Regardless of your husband’s lack of earning capacity this, to them, is preferable as it increases the chance that they may recover some of the monies due.

Unfortunately, there is little that can be done to force a bank to consent to such a change notwithstanding the fact that you are already paying the mortgage in full for almost two years without arrears.

I note you are entering into a separation agreement with your husband, and I would caution you that separation agreements are ineffectual in dealing with pension issues and without the Bank’s consent – property issues.

As your current position stands therefore you cannot force the bank to consent to the transfer of the property into your sole name notwithstanding the fact that you and your husband agree and that you have being paying all the repayments for the past twenty months.

If you have a legal query that you would like answered you can email or send your query to Alex O’Neill Solicitors, 22 Barrington Street, Limerick. The column is a reader’s service and is not intended to replace professional advice.  No individual correspondence will be entered into.