Mortgages and secured loans

If the other civil partner is not willing to give her/his consent, the joint owner or entitled civil partner can ask the court to grant an order dispensing with the requirement for the other civil partner's consent. [1] The court can make such an order if any of the following criteria are satisfied: [2]

• The partner's consent cannot be given by reason of physical or mental disability.

• The partner cannot be found despite reasonable steps taken to trace her/him.

• The consent of the partner is being unreasonably withheld.

The court will find that consent has been unreasonably withheld if: [3]

• the non-entitled partner would not be affected by the dealing and has led the entitled partner to believe that s/he would consent to it, or

• the entitled partner has, despite taking all reasonable steps, been unable to obtain an answer either way from the non-entitled partner.

In deciding whether to dispense with consent the court will consider all the circumstances of the case. [4]

If the court does dispense with the non-entitled partner's consent it can attach conditions to the order relating to the details of the mortgage. The court can set a maximum value for any mortgage taken out over the family home. It may also insist that the mortgage be paid off by a particular date. [5]

If the court refuses to dispense with the non-entitled partner's consent it can make an order requiring her/him to make payments to the entitled partner and/or to comply with other conditions relating to her/his occupation of the family home. [6]

The fact that a non-entitled partner has occupancy rights to the family home will not prevent a lender enforcing a debt if the obligations of the loan are not met. If the non-entitled partner remains in the family home after the entitled partner has moved out, a lender can ask the court to grant an order requiring the non-entitled partner to pay the mortgage or secured loan repayments due by the entitled partner. [7] For such an order to be granted, the lender must show that at the time the mortgage or secured loan was taken out:

• the entitled partner declared that there was no non-entitled partner

• the property that the loan was secured on, was declared not be a family home

• written consent to the mortgage or loan was given by the non-entitled partner

• the non-entitled partner had renounced her/his occupancy rights. [8]

In the event that a lender commences proceedings to enforce a debt secured on the family home, it is possible for the non-entitled partner to apply for a section 2 order under the Mortgage Rights Act for action before 30th September 2010. [9] If action is taken after this date the non-entitled partner can represent themselves at court and make any other order the court would take into consideration. [10]

For more information, please see the section on mortgage arrears and court action.