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Can I get an order to remove partner from family home

(87 Posts)
WADA Mon 21-Feb-11 17:53:07

My partner and I separated last year. He is steadfastly refusing to move out of the family home because he doesn't want to lose out on any equity the house may gain up until my youngest is 18. My argument is that I will be paying the repayments on the mortgage and don't think he should be entitled to 50% of any equity. He earns upwards of £300 per day whilst I will be trying to pay for the mortgage on benefits initially and then on a part time wage. It seems wrong that he should be able to claim 50% just to have his name on the mortgage. Unfortunately I can't remortgage as I don't currently work.

I want to stay in the home with the children because I think it's in their best interests that they have the security of their home, school and local friends. My youngest is almost 4 and my plan of action is to claim IS until he is five and following that JSA for 2 years whilst I work 15 hours a week. This should entitle me to receive SMI for 3 years. I am studying at the moment and should qualify in my chosen occupation in 3 years after which I'll be looking for work part time work around school hours.

Is there any way I can force XP to move out of property whilst delaying the sale of the property until youngest is 18 (I think he should be entitled to a percentage of the equity for keeping his name on the mortgage just not 50%. I've also said he should keep half of the equity to the date he moves out).

My argument is that I would have little chance of renting in the area I currently live in because of the reluctance to rent to people on benefits. I also have two animals which would need to come with us (kids and I would be devastated if anything happened to them). My Ex on the other half has so much money anyone would rent to him (he left his bank statement out at currently has 3K) sitting in his current account (lucky bugger!)

He seems intent on trying to punish me for being a SAHM both when we were in the relationship and now. He just refuses to see past his own needs to those of his children.

Can I do anything - I've heard of TOLATA and the Children's Act but I don't know if they apply in this case.

It doesn't seem right that he can get to refuse to leave. Do I have any rights at all without disadvantaging my children?

Thank you

STIDW Mon 21-Feb-11 18:26:36

Your partner has as much right to live in the property as you. When you aren't married the starting point is property law, TOLATA, and if the property is held in joint names each party is entitled to 50% unless the deeds state otherwise. However, if your ex partner is relatively wealthy it may be possible under family law to claim that he provides a property for the children to live in until they reach maturity. This is a complicated area of law and therefore expensive and you really need to see a solicitor to find out where you stand and what your options are. It is in everyone's interest to negotiate rather than get bogged down with a long expensive court case damaging long term family relationships further.

Maelstrom Mon 21-Feb-11 18:33:57

You need to apply for a Mesher order, but expect things to get nasty as soon as the court is involved. There is no guarantee that you would get it but always worth a try.

Having said that, I think your plan, described in paragraph 2, sucks. Get back to work as soon as you can, life in benefits is DIRE if you are used to the standard of living a £300 per day income provides. You will feel safer, would have better long term prospects (and more money) if you work and claim tax credits than if you try to make do with lone parent income support.

STIDW Mon 21-Feb-11 18:54:16

Hold on, a Mesher order is a court order that postpones the sale of the marital home and gives a chargeback to a spouse when specified events trigger a sale. In this case OP referred to her partner so I assume she wasn't married.

Maelstrom Mon 21-Feb-11 19:05:16

I was recently corrected in Mumsnet when I mentioned that Meshers were just for married people, I suppose it may have a different name for unmarried partners.

STIDW Mon 21-Feb-11 19:33:52

I don't think there is any reason why someone who is unmarried cannot agree something similar to a Mesher type arrangement, but it cannot be forced.

With divorce the courts can impose a property adjustment order under the Matrimonial Causes Act 1973. When someone isn't married it's different ball game and they need to rely on property law to determine property ownership. Under the Children Act 1989 it may be possible for property to be held in trust for the children to live in until they reach maturity. Ownership of the property then reverts back to original owner.

As I said it's complicated and expensive and OP really needs to consult a solicitor about her specific circumstances.

Resolution Mon 21-Feb-11 23:22:04

Just to add my tuppence worth (whenever don't I?) you don't have to be a fabulously wealthy father to be on the wrong end of a Children Act Schedule 1 claim. Often it's the only capital going, but if that's the only way the children can remain housed, then so be it.

WADA Tue 22-Feb-11 11:10:42

Thanks for your replies. It does look as though I need a Solicitor. Anyone know if I can get Legal Aid? Is there anyway I can force exp into mediation (it would make far more sense to do this but he says he's wasted enough time on me and won't do it voluntarily!).

Maelstrom - appreciate the advice but please don't make the assumption that I live a £300 a day lifestyle! My ex is as tight as a*******s (I have been hoovering the carpets with the hoover attachment for the past god knows how long because he wouldn't replace the broken one. My daughter has a bed which is broken and I can't possibly tell him that the cats have clawed their way through a portion of carpet on the stairs for fear of the retribution!) With regard to returning to work. Of course I'd prefer to return to work to support my family (I worked full time from the age of 16 until I had my children). However the level of SMI I'd receive makes it uneconomical to do. You may think my plan sucks (thanks by the way, I've spent hours and hours going through different calculations, talking to different people to find out the best way) and this is the most pragmatic approach at the moment. It is also important to me that I be able to drop the kids off and pick them up from school (youngest is only 3 and doesn't actually start until Sept). Everyone is different but for me the kids come before money. So long as we can cope I am happy to scrimp and save until I'm qualified and can earn a reasonable salary.

I recognise I am feeling defensive today and I apologise but I feel the need to vent as this is a very stressful time. Whilst my exp says no to literally every suggestion I make (and I'm having to make them all because he feels so damned entitled to be waited on), I am left to try and look after myself and my children whilst being told how terrible I am as a person and a mother. The guilt, the worry and the fear for the future are sometimes crippling and although the easiest thing to do would be to sell up so that he has no control over me, it is not in the best interests of the children or myself in the long term. So I find myself battling on best I can to ensure they can grow up in their neighbourhood, go to the same school and nip round to their mates who also live locally.

Resolution Tue 22-Feb-11 12:47:35

google LSC eligibility calculator - fill in the form and you'll get a good idea about legal aid, but if you don't work ,then you'll get it.

babybarrister Colombia Tue 22-Feb-11 16:57:40

rules on mediation changing after 6th April though I think only for the applicant and not the respondent ....

you need a good solicitor - have a look at the Resolution website which lists specialists in family law

Resolution Tue 22-Feb-11 17:04:37

hello babyb. Long time no see.

WADA Tue 22-Feb-11 17:13:01

He has told me this afternoon that I can attend mediation. He will write his objections in a letter!

He is also maintaining that despite me paying the mortgage once he moves out he wants 50% of the total equity when our son reaches 18. How does this work if he goes on to buy a second property to live in (which he could do with his earnings)? Essentially he could benefit from having his own home which he pays the mortgage for, have 50% equity of his former home which I would have been paying for and I could be left with only 50% equity thereby potentially disadvantaging me from buying another property when my son leaves home. That can't be right when his annual earnings are likely to be around 60K and mine will be 25K pro rated over around 25 hours per week.

He is also refusing to move out until it is convenient for him saying he wants to look for a local job. This theoretically could take forever and then even when he finds a job he then has to look for a place to live. What if he says he's looking for a job but doesn't. In the meantime he gets to call me names, send emails threatening not to pay anything, telling me he's collecting evidence of my inability to spot dangers in the home (my daughter had an accident at the weekend and burned her arm - total accident but he feels I should be blamed for bad mothering). He has also bad mouthed me to my daughter and has told me it's ok for us to argue in front of the kids because they shouldn't be wrapped in cotton wool!

At the moment I feel as though I have no rights and than I am at the mercy of a control freak intent on punishing me for some unspeakable crime.

Someone please tell me the situation isn't completely hopeless?

babybarrister Colombia Tue 22-Feb-11 18:23:09

please, please go and get some detailed legal advice and get proceedings going .... yes you will be likely to be bringing a TOLATA claim and a Schedule 1 Children Act claim - your solicitor needs to sort out the details as MN whilst good cannot do this sort of work! there is absolutely nothing to prevent negotiations once proceedings started. As for the disparity in income, I am afraid that is the reality of being a cohabitant and not a spouse ...you will of course get child maintenance based upon ex's higher income

Resolution - hi to you too!

WADA Tue 22-Feb-11 18:44:43

I should be seeing a Resolution lawyer who is also an acquaintance on Monday. It would be good to find an alternative solution but as you say I need some legal advice.

Thanks again for all the replies.

Maelstrom Tue 22-Feb-11 19:39:58

Wada, try the benefit calculator in https://www.turn2us.entitledto.co.uk/entitlementcalculator.aspx you will find it out that you are much better working even if it is only 16 hrs a week.

I had a spell of unemployment and went into lone parent support who paid me the princely sum of £24 a week. You can get several times that in tax credits and help to pay for childcare if you need to, in addition of your salary, when you are working.

But the best part is that by getting back to work, you are improving your future. I have seen many people ending in a very bad place once that the benefits run out on the children's 16th birthday.

I understand about being with tight people, I was married to one, but the difference is this, now when something brakes I can afford to replace it, before, while in benefits it was simply impossible, ie. DS and I had a pilgrimage around friends houses one winter, when the boiler broke down and we simply couldn't afford to fix it for several weeks. I couldn't even afford to replace a kettle back then, forget about a boiler. At the end, I qualified for a low income families scheme that sorted the problem, but that was almost 6 months after the thing broke down..

WADA Tue 22-Feb-11 20:08:27

The problem I have is that if I don't claim income support I can't get support for mortgage interest which will cover my interest and capital repayments for a year (actually 3 years with JSA and 15 hours a week work). With all the will in the world if I work 16 hours a week and claim working tax credit, it doesn't arrive at anywhere near this amount. I appear to be one of those odd quirks in the system where because my mortgage interest rate is so low the interest rate threshold for SMI is more than double my rate.

Please don't make the assumption I intend to stay on benefits until my kids are 16. I'm not work shy. I would prefer to be working and would have loved a part time job whilst the kids were little but childcare would have cost the amount I was earning. I'm taking a purely pragmatic approach which involves also getting financial help to finish studying which should then enable me to get a better paying job for when I come off benefits in 3 years time.

I can't feel bad about asking the system to help me out in my time of need. I've worked full time since the age of 16 and have never needed help.

This is a temporary situation.

The entitledto calculator is brilliant and I said in my above posting I have spent hours and hours going through different calculations.

Resolution Wed 23-Feb-11 00:11:38

You might not be able to claim mortgage interest in the first 9 months of any claim (I think).

cestlavielife Wed 23-Feb-11 00:19:27

support for mortgage intereswt wont cover capital repayments. unless you have information somewhere which says it will do so?

in your argument you say you would have been paying the mortgage - but you would not have been - the govt would have been. (sorri if that sounds bolshy but it would be the reality - like getting HB, the govt would be paying for you to live there.... not you personally as such. (or not for a few years anyway...)

in any case while house remains joint owned you probably cannot claim SMI. why should they pay SMI when it joint owned and the other named party can pay the mortgage?

depends how much your mortgage is etc - but to have it put into your name (or your name plus in trust for DC) -well the mortgage company may not allow this unless you have a guarantor or another person named on the mortgage.

so it is complex.

(my exP is trying to keep the joint home on this basis ie transfer to his name - and have SMI pay for it - bank have told me - no way - and i have yet to see evidence from him that is possible.

so..we going thru TOLATA and childrens act.

in my case i want the equity to buy elsewhere for me and DC - so it is a diff situation but i've read up a little and got some good info on here (tks resolution, BB etc)

basically -y ou need to bring a combined TOLATA claim and a Schedule 1 Children Act claim - so that the needs of children to reside in the family home is discussed and it is agreed what share is later due to your ex -and yes it woud be when youngest reaches 18 or ends full time education.

but you are in difficult situation in that you may not be able to take on mortgage in your name only . if it remains joint owned and he has moved out -then it would be expected for you to keep up the mortgage payments as you residing there.

but speak to a solicitor in detail.

you could try and resolve in mediation - but you need good advice first as to what to propose in mediation from your side.

and check if you can claim SMI if it remains joint owned - i think not as this has been the case for my exP. (i am renting with DC but need to acess my share of equity - will mean selling up as cant see how he can buy me out or keep up mortgage on basis of SMI.

speak to the bank also if you thinking get it transferred to your name but with ex having right to "his" share when youngest reaches 18... .

GypsyMoth Wed 23-Feb-11 00:21:48

Whilst he's working and living there then you won't be able to claim benefits!!

WADA Wed 23-Feb-11 07:41:59

Resolution - there is a 13 week waiting period (3 month mortgage payment holiday will cover this)

Cestlavielife - SMI ordinarily does not cover capital payments you are correct. However, it is paid out at the rate of 3.63. If your interest rate is less than this then the excess will be credited to the mortgage account i.e. paying off the capital (I was told this by my mortgage company). Therefore it would make more financial sense to stay there than to rent which if I wanted to give the kids each a room as they have now, I would have to make additional contributions of around £150 a month. It is a temporary and pragmatic approach.

My understanding is that you do not have to have the mortgage in your sole name to claim SMI. It is based on what benefits you are receiving at the time (income support - indefinitely or JSA for 2 years).

You jump to conclusions over who will be paying the mortgage. The Government will be paying for the first 3 years only. The remaining 11 will be paid by me.

The mortgage company will not agree for me to have the mortgage in my name at the moment but they are happy for the mortgage to be paid by SMI until my partner moves out and after that they will revert to interest only temporarily if my earnings are still a little on the low side at that time.

Believe me as I've said numerous times now I have spent hours researching this stuff and speaking to people. I haven't plucked this information out of thin air hoping it will all work out. I'm terrified for the future for me and the children. Of course the proof is in the pudding and until he moves out it's all theoretical. I just want a resolution and to be able to move on. If it doesn't work out and I have to move then so be it. This uncertainty is just so stressful but I will never stop fighting for us to stay in the family home.

Tolata and Children's Act does seem the most sensible way forward. I have an appointment with a Solicitor on Monday so we'll go from there.

ILoveTIFFANY - I'm sorry but yes I know that!

Clearly I'm still feeling defensive - sorry guys I know you're only trying to help!!!!

Resolution Wed 23-Feb-11 07:57:32

WADA - SMI is the lesser of the statutory rate or the actual rate. They ^never^ pay capital. You will get SMI even if it is jointly owned.

WADA Wed 23-Feb-11 08:23:18

Resolution here is the link from the direct.gov.uk

SMI – excess payments

Some homeowners may have actual interest rates that are lower than the standard rate used to calculate SMI payments. This means they receive more SMI than required to meet the payments due to their lender. These payments can only be credited to their mortgage account.

Hope that clears it up.

Resolution Wed 23-Feb-11 09:29:58

Like a man in orthapedic shoes, I stand corrected.grin

GypsyMoth Wed 23-Feb-11 10:34:17

If he's still on the house it's going to be benefit fraud whilst you claim. So how will you even get the benefits? I don't understand that bit??

If your kids ate going to be so much better off without him, then move out, rent somewhere like others do!

WADA Wed 23-Feb-11 10:47:55

ILoveTiffany

Your comments are both rude, ill considered and unhelpful. If you have the conviction that it is benefit fraud then present me with the evidence. Both the Goverment and my mortgage provider do not consider it fraud. What do you know that they dont?!

WADA Wed 23-Feb-11 10:48:29

Resolution

I like your orthopaedic comment - very funny!

GypsyMoth Wed 23-Feb-11 10:50:14

If you have a wage earner living with you, it's benefit fraud. That's all

GypsyMoth Wed 23-Feb-11 10:52:24

And you don't get the mortgage paid for you whilst on benefits either. Just the interest.

WADA Wed 23-Feb-11 11:27:11

ILoveTiffany

If you're going to post anything can you at least read the thread properly before making pointless comments. I've never talked about claiming whilst a wage earner lives with me!!!! Of course that would be benefit fraud.

As for the issue of the mortgage - read the thread only a couple of comments back! Even Resolution stood corrected on the point of what the government does if one's interest rate is lower than 3.63!

I appreciate people taking the time to respond and I've received a lot of useful feedback but you are throwing stuff into the mix that is very unhelpful and what is already stressful time.

chickchickchicken Wed 23-Feb-11 12:02:18

OP, i feel for you and completely understand why you want to stay in the family home until the kids are grown up but at the same time protecting your financial future as much as possible.

i am not a solicitor so cannot give legal advice but have been through similiar. i cannot go into specifics here but one of the things which i was completely unaware of which may help with one part of your query is that the names on the mortgage does not have to be the same as on the deeds (sorry if this is basic info but i didnt know it)

so its possible to keep joints names on mortgage, get help to pay part of it until you can work (subject to rules you already know about re fraud) but have the deeds transferred into your name only.

i had to have a solicitor to help me. i had to give up rights to his pension etc in order for him to agree but at least i kept the family home. not a luxury home so couldnt downsize and was very important for ds for us to stay here.

i hope you dont feel guilty for relying on govt to help you as a temporary measure. you are doing what you think is best for kids and will return to work as soon as you can. i admire you for being able to think it all through so logically during what must be a difficult time for you.

on another note, is it worth you contacting womens aid? could you be experiencing emotional abuse? domestic abuse covers financial, sexual, emotional abuse as well as violence. i am not saying you are and maybe what you describe is 'general' (sorry builder here and not at my best mentally! cant think of a more appropriate word) relationship breakdown

womens aid can help support you emotionally but also offer specific housing/legal advice

cestlavielife Wed 23-Feb-11 14:45:32

so its possible to keep joints names on mortgage, get help to pay part of it until you can work (subject to rules you already know about re fraud) but have the deeds transferred into your name only.

that is true -but the second person remains liable for the mortgage. maybe as a guarantor. so if one doesnt pay - they can chase the other. and i think i may be wrong that second person as joint mortgageee (not as gaurantor) may have to have nominal 1 per cent of rights to property? not sure may have mis read.

WADA Wed 23-Feb-11 17:19:07

chickchickchicken

Thank you for your kind posting and thanks for the helpful information. I'm glad someone can see the sense in what I'm trying to do. Ironically it will also be cheaper for the government to help with SMI than if I rented and claimed HB so it makes sense all round really! Would you mind if I PM'd you about more details?

cestlavielife

I'll see what my Solicitor says about rights etc. I've already offered my ex 10% of any future equity but he refused and subsequently my Solicitor advised it was too generous an offer and that a straight 50/50 of the current equity was appropriate.

Really I just want everything done and dusted so that we can all move on and start rebuilding our lives.

How is the mortgage currently being paid?

Is he supporting the children or you at all?

WADA Wed 23-Feb-11 17:55:08

LaurieFairyCake

I'm happy to answer your questions if they are relevant but at this stage in the conversation could I ask you to expand on why you're asking them please.

Cheers

Because I think you should contact Womens Aid as I wondered if you were being financially abused.

What you have said so far makes me worry that he would pretend to move out, you would then claim benefits and then he would say he hasn't moved out to get you into trouble - a bit like IloveTiffany was warning you about.

It may be really difficult to get him to move out.

chickchickchicken Wed 23-Feb-11 19:03:26

WADA - yes, it ok to pm me

WADA Wed 23-Feb-11 19:08:05

Thanks for clarifying LaurieFairyCake. I must admit I tried to call Women's Aid yesterday but they were busy and I kind of lost my bottle. I've shown yesterday's emails to my sister and a couple of close friends and they are horrified by what they contain. The emails are littered with threats to quit work so that I don't receive a penny, refusal to go to mediation, comments about my parenting, refusal to find an alternative place to live until it's convenient for him and on it goes. He's also made comments about my weight, that I've made no contribution to the house (he once said he would prefer that I work full time and put the children in full time care so that at least he wasn't the only one doing earning money). Unfortunately he doesn't see raising the kids as proper work. His comments don't threaten to hurt me physically but they do make me feel powerless to stop saying nasty things, intimidated and fearful about him fulfilling his obligations towards the children in a consistent manner.

Out of curiosity how could he pretend to move out? The benefits office told me to contact them about a week before he moves out to get the ball rolling with what is currently a dormant claim so surely they would know I wasn't be fraudulent?

In any event if I'm investigating trying to obtain an Order I would hope that he would have to be honest with a Court about moving out?

Cheers

WADA Wed 23-Feb-11 19:10:50

Sorry LaurieFairyCake I didn't actually answer your earlier questions!!

He is currently paying the mortgage in full and all the bills. Basically financially he is continuing to do almost what he did before we split up.

Cheers

WADA Thu 24-Feb-11 06:46:48

cestlavielife

I was reading through some of your threads last night (boy you've had some trying (and complicated) times!). How is everything?

I noticed in one or a couple of postings that you or someone else in the thread mentioned that a person remaining in a property would get credit for any capital repayments they paid on a mortgage with half of the interest payments being classed as nominal rent to the person not living at the property. Have I understood this correctly?

Would this mean exp would be entitled to half of the equity to date he moves out and thereafter 50% of any future equity less capital payments I have made? If so then surely this would be acceptable to him as it's pretty fair to both parties - no?

I wake up thinking about ways to try and make this work without resorting to Court!

Youllskimmer Thu 24-Feb-11 07:14:16

I think it is very dicey to base anything long term on what benefits are now and what mortgage interest rates are now.

The first one is sure to go down and the second is sure to go up.

What's the plan once benefits start getting cut and interest rates rise above the government threshold? And I can't see the Tories keeping the mortgage relief payments for ever.

WADA Thu 24-Feb-11 07:40:24

Youllskimmer

Who said anything about long term?

I've explained my plan in some of the earlier postings - please feel free to look.

Resolution Thu 24-Feb-11 09:48:51

You're correct about getting dredit for capital repayments and occupation rent. The equity he has of 50% will be valued as at the date that he realises his interest in the property.

WADA Thu 24-Feb-11 10:57:23

And by release Resolution to you mean in terms of name on the Deeds rather removal of his name from the mortgage?

cestlavielife Thu 24-Feb-11 11:08:50

would be release from deeds/title/land registry presumably?
as that is when he no longer has an interest/part owns the propoerty

cestlavielife Thu 24-Feb-11 11:11:50

always in percentage terms?
so if agreed 50 per cent now - which might be for sake of argument 20,000 - in five or ten years this could be 50,000 or 10,000 -depending if prices go up or down?

cestlavielife Thu 24-Feb-11 11:12:26

if prices go up you both gain - if they go down you "owe" him less in actual figures?

WADA Thu 24-Feb-11 11:15:54

Can I just double check I've got my brain around this now!

If a TOLATA and Childrens Act Order were granted would that mean:-

I could remain in the property with the kids until youngest was 18 with my paying the mortgage?

He would remain on the mortgage and deeds until either I bought him out when the kids are 18 or the house is sold but he would limited to receiving 50% equity less the value of capital payments I make?

If his name remains on the mortgage and deeds does he retain rights to enter the property (I'd feel quite insecure if he could enter at his will).

cestlavielife Thu 24-Feb-11 11:35:25

sounds right by my thinking.
takes a while - we had first hearing december (but exP was mentally incapable) second is 6 april (gp now saying exP is "stable"), he has put his views forward (that i should move next door to him iunto teh oint owned but currently rented out property); i have put my views (not moving next door sale is only option - but still waiting to see if he comes up with evidence he can retain one property in his name only by getting SMI - but as you have said, mortgage cant be in his name only...) if no agreement two days set for june.

he would retain right to enter - as property still part belongs to him - but it would be expected that he should give 24 hour notice. you could get a written agreement with him to this effect.

Resolution Thu 24-Feb-11 11:44:22

NO HE WILL NOT RETAIN A RIGHT TO ENTER!!!

You will have the sole right to reside there - that's the Children Act part of the order.

Resolution Thu 24-Feb-11 11:45:14

And by 'realise' I mean when he gets paid for his 50%.

cestlavielife Thu 24-Feb-11 11:47:49

glad to be corrected on that part about entering! makes more sense.

Resolution Thu 24-Feb-11 12:16:59

sorry - didn't mean to shout....

WADA Thu 24-Feb-11 15:22:17

Thanks for lightening up proceedings Resolution and cestlavielife and I'm glad to hear I couldn't be given any unwanted visits!!

OK I feel I'm getting a better handle on this now. So just to drill down a bit further and as my ex is today threating to apply to have the house sold unless I capitulate to a total 50/50 can we do some calculations to see if I've understood?

Theoretically speaking if my repayments were say £500 per month (£150 representing interest at 2% and £350 being capital repayment)I would be given credit for £350 each month which means in theory I would be given £58,000 credit(obviously as interest rates rise this figure would be adjusted downwards).

So my ex would be entitled to 50% of whatever the equity is on the date of my son's 18th less £58,000?

If this is the case then I don't think I really have much of a problem with it. It seems pretty fair and equitable on the surface. I was worried I would lose out by making the repayments and him taking 50% of everything I'd paid until my son reached 18.

He is also now talking about buying another house. Would his purchase of a second home make any difference?

cestlavielife Thu 24-Feb-11 16:42:49

58000 being 13 years worth of £350??

if he needs to get off your joint mortgage in order to purchase another home then yes it could create issues - his total liability mortgage wise can only be up to three/four/five times his salary - so depends how much he needs to borrow and how much his mortgage capacity is.

this is my problem. i cannot remain on joint mortgage with exP AND get another mortgage to buy another property, because of my liability to the joint mortgage espec as he not working.

and i need equity released now from sale to use as a deposit.

it might be better to go to court so that a judge decides under tolata/childrens act what you and DC should have .

if chilren residing with you and you sell now - you could have some of his 50% for the DC.

but if you want to stay in property you might need to buy him out now - which might not be feasible. unless childrenss act application says you have to stay in that house for whatever reason?? and that he has to support that for the children??

a sale could be effectively to you - or to outside party.

Resolution Thu 24-Feb-11 17:07:42

Basically when you sell you'd assume the mortgage was what it was at the date of separation - ie you'd get the credit for anything paid off. You wouldn't have to arse around working out £350 x (x+y).

What is the house worth, and how much is owed on the mortgage?

WADA Thu 24-Feb-11 17:20:17

House is currently worth about 185k.

158k owed on mortgage

I was just using the calculation to get a rough idea of what we'd be talking about.

I think it's pretty much clear now.

Don't think ex will go for me being given credit for anything I've paid off but we'll see.

Have an appointment with Solicitor on the 7th.

Thanks a million for all your help. I feel so much better at least knowing what options are available. What will be will be and I'll accept it whatever the outcome. I just feel better knowing I can fight for what I believe is right. The rest is up to fate!

chickchickchicken Thu 24-Feb-11 17:26:02

i've pm'd you

Resolution Fri 25-Feb-11 00:00:39

He doesn't have a choice about you getting credit for capital repayments.

WADA Sat 26-Feb-11 21:36:04

Thought we were pretty done and dusted. Got an email from ex tonight saying he won't move out until beginning of May, says if credit is to be given to my future capital repayments he wants credit for the past 5 years payments. I think this is bonkers. I've been at home raising the kids. He can't possibly think that he is entitled to be given credit back for that. He places no stock in my raising the kids but surely a Court would. He makes me feel as though I am worthless. He is effectively saying that my contribution isn't worth anything because it wasn't in monetary terms. I want to brain him! He is also saying he will ignore any legal representation on my part prior to the beginning of April. He's also said he won't communicate with me again! He can't claim the last 5 years worth of capital repayments can he?

Resolution Sun 27-Feb-11 00:08:16

No he can't. You only get credit for capital repayments made since separation.

WADA Sun 27-Feb-11 09:14:35

Thanks for that Resolution. I also suspect he's going through the the self employed CSA route. He's made an offer of what he wants to pay per month. It is a fair amount but nowhere near 20% of his net salary. He's threatening to reduce this amount because he wants to work less so will earn less. Fair enough if he gets a local job and earns less. I have no problem with that as he'll be able to see the kids more which they will love and that's the main thing. However, what he's really saying under it all is that whilst he is contracting he wants to pay less than 20% and if I go through CSA route he will declare himself self employed, pay himself the least amount possible, keep the rest as business profits and then I'll get a much smaller maintenance payment. Why will this bloke not just pay what he's supposed to pay?

Honestly as he's told me before he sees this as a battle he wants to win. It's exhausting to continually be up against a mentality like this. I want what is fair without having to play all the mind games. The problem with a private maintenance agreement is that he will be able to pay what he wants, when he wants. I'd like a standing order set up, I bet he makes me beg each month for a cheque. If he wants to delay by a week he's going to be able to do it. If he wants to pay less, he will do it. It seems to me as though it's all about control. It will be tight enough for me to keep everything going without having to worry about his games. I guess there's not a lot I can do about child maintenance until he gets a permanent job and I can get the CSA to make sure he pays. Is that right?

The short answer is that of course you can go to court and get a court order that will be enforceable. And he can go back to court to get a variation of the order, so nothing really is written in stone. Perhaps you would be better off with a flexible private arrangement.

As far as mediation is concerned, not sure from thread whether this is dead duck or not, but you really need the cooperation of both for it to be effective. How much of saying it's a, 'battle' is bravado?

STIDW Sun 27-Feb-11 16:22:37

In my experience the only way to deal with threats is to stand up against them otherwise more threats tend to follow. If someone is continuely unreasonable involving the CSA and knowing where you stand, even if the non resident parent who is self employed can legitimately reduce their accessible income, is a lesser evil.

STIDW Sun 27-Feb-11 20:16:46

Late night last night, sorry, that should be assessablenot accessible income. blush

sneezecakesmum Netherlands Sun 27-Feb-11 20:53:07

WADA there is no reason a private agreement for CM should be paid by cheque. It is advised on the form it should be a standing order here
It is not legally binding, but if you both agree and it runs smoothly he may feel more in control if not 'forced' by the CSA. Check with the CSA online calculator what he should be paying. If he messes about go to the CSA - but you are right regarding the self employment issue.

Resolution Sun 27-Feb-11 23:53:26

The Court can't make a child maintenance order anymore unless it's agreed and part of a divorce settlement.

WADA Mon 28-Feb-11 09:15:54

That's fine Resolution. We're not married anyway. It looks as though I have no option but to accept whatever he decides to pay otherwise I risk getting nothing.

WADA Mon 07-Mar-11 14:43:20

Just an update as I saw my Solicitor today. Her view is that the starting point is a straight 50/50. She doesn't know anything about being given credit for any capital repayments but says the best thing to do is to switch the mortgage to interest only and then set up an endowment so that I'm not effectively giving him half of any capital repayments I make. I haven't quite got my head around the endowment bit yet but I'm pondering!

She has basically said that it is likely (although not guaranteed) that if we went to Court that I would be awarded a transfer of equity for the property although it is likely to cost between 3-5k to get an Order. It is likely to cost around £800 for the conveyancing work if we can make agreement - big difference huh! Her opinion is that an agreement is best and certainly cheaper.

She has said that unless I have a transfer of equity that I'll be unable to refuse him entry. I doubt in all honesty that he'll go for the transfer of equity because he wants control over me. He would love to be able to have the power to access the house whenever he likes with me being unable to do anything about it.

I do think though that if things are going to be a straight 50/50 down the middle that he should do the honourable thing and pay 20% of his net salary in child maintenance. He's trying to get around that by making an agreement, knowing in the back of his head if I refuse he can go down the self employed route and I'll get nothing.

I've come away feeling OK that it's likely that I'll get to keep the house but despondent that I can't get him to move out any earlier than he wants to and that he'll continue to have access rights unless I can get him to agree a transfer of equity. I feel as though he will continue to have some degree of control over me until I can afford to buy him out. Perhaps that will be my motivator though and perhaps when things calm down it won't seem so bad. I'm happy that the kids should in all likelihood get to remain their home - that after all was my primary goal.

Of course I have to go back to him now and try and negotiate this which kind of feels like I'm going cap in hand because I know he has the upper hand. I'm sure he will make me suffer as he likes to do!

wannaBe Mon 07-Mar-11 15:44:46

Op, I understand your motivation for wanting to stay in the family home, but tbh by doing that you are allowing him to continue to have control, both in terms of his residence within the property (while he says he will move out, given he is paying the mortgage, legally he can stay there), but also in terms of his future rights to equity within the property and also wrt access to the property while it is still jointly owned. You should also consider that he may be able to borrow against the property in the future which could put you in a negative equity situation should you wish to sell the house at some point.

At the end of the day, a house is just a house - your children will have a home wherever they live with you, and that house will be forgotten soon enough.

Right now your ex is relying on your desire to stay in the house. But you can take control.

I know being a sahm is what you want but sometimes life deals us a different hand and we have to make alternative choices. If you sell the house now you will be able to take out your share of the equity. Have you had the property valued recently? If so then you will know how much 50% of that equity will be.

If your ex isn't moving out until May you could use that time to look for a rental that will accept animals and consider your options wrt working. I presume your youngest is due to start school in September? in which case does the school have an after school club? Childcare costs do go down signifficantly once they start school because you're only needing the after school care as opposed to all day - apart from in the holidays.

You are basing your current calculations on current interest rates and benefits, but in fact interest rates are likely to go up signifficantly and benefits are likely to go down.

Currently everyone else is in control of this but you.

If you take out your equity now you won't need to use a solicitor or obtain any kinds of court proceedings, and you can move on. Whereas now if your ex decides to stay in the house until your youngest is eighteen he would be legally entitled to do so.

Resolution Mon 07-Mar-11 16:26:34

Just 2 things:

Assuming the court makes an order under the children act, after the property is transferred into a trust, he will not be allowed to occupy it. Don't worry about him staying there until the kids reach 18. That will only happen if you do nothing about it.

Also, he won't be able to mortgage it - or rather he will, but only his reversionary interest in the property.

wannaBe Mon 07-Mar-11 17:46:15

switching the mortgage to interest only could potentially be fraught with issues:

Firstly if you are claiming benefits you would only be entitled to the interest repayments on the mortgage, so whereas if you are on a repayment mortgage they will pay a certain amount with potential for any surplus to be paid off the capital, if it is interest only the interest is all you will get - there is no way they will be paying out money into an endowment which to all intents and purposes you could use for any purpose.

Secondly endowments are risky, because they are very much market-dependent, and they are never guaranteed to grow at the rate at which you might require in order to repay the capital element when the mortgage expires. So if we have another recesssion or the market doesn't recover in the next few years you could end up with a signifficant shortfall.

In the 80's and early 90's endowment mortgages were common, and people ended up in situations where they were unable to meet the capital repayments from the endowment alone and were left to find large sums of capital at the end of the mortgage period. If you're planning to live on benefits for the foreseeable future (next three or four years or so) it's unlikely you're going to have enough of an income to put into an endowment during that period, so you're already going to be at a financial disadvantage in terms of your capital repayments by the time you're in a better position financially, and even then there are no guarantees.

WADA Tue 08-Mar-11 06:34:29

Hey Resolution - would you mind clarifying what you mean about having capital repayments credited back when the house is eventually sold. I think I may have misunderstood what you were saying some posts back - my Solicitor (who is part of Resolution) doesn't know of this and suggests swapping to interest only and setting up an endowment policy instead. This way I can protect myself from him eventually having the benefit of 50% of the capital repayments I would have made until my son reaches 18.

I'm not sure what revisionary interest means but am I at risk of him taking out a secured loan against the property if I don't have an Order?

Obviously I'd still like us to be able to agree something without a Court being involved but I doubt he will agree to relinquish any control without a fight. Would the 3-5k it will cost to get an Order be taken out of the joint equity or will it be assigned to my half (if that makes sense!)

Also in terms of maintenance payments for the children is there anything I can do about ensuring he pays 20% net income. I know he can play the self employed card but is there anything I can do to show he's playing the system? If I leave it to him to determine how much he's going to pay and when I could be heading for trouble.

I now have unenviable task of going back to the table and trying to re-negotiate with him. Any ideas on how I make the deal seem attractive to him. I think he will want to keep things as they are so that he has the maximum amount of control.

wannaBe - If I'm honest I felt quite defensive when I first read your post but on reflection I totally hear what you are saying and you are right, I could take back control in the ways you suggest but do you know what my mindset just isn't there. When I really listen to my heart and to what I want and what I feel is important to me and the children it is the family home and it comes back to the same thing every time I think about it. Over the last few months I have wrestled with why I feel so attached and although I'm not 100% sure I think it boils down to security. I feel secure in the knowledge that I can't be removed from my home at another's whim. I think as painful as I am finding it at the moment staying in my home means too much for me to be able to give it up. Does that make sense?

Resolution Tue 08-Mar-11 10:02:39

see the attached - para 54

www.familylawweek.co.uk/site.aspx?i=ed749

It's a very basic thing. Perhaps you misunderstood what your solicitor was saying? When the order is made it should include provision that if the mortgage debt is allowed by you to increase then you should be responsible for it, but if it reduces you should get the benefit of that.

A reversionary interest is an interest that you cannot use immediately - eg someone has a life interest and you're waiting for them to die. Their interest then 'reverts' to the holder of the reversionary interest. He's unlikely to find someone who'll lend him money secured on it, but his creditors could get a charging order. They couldn't get you to sell the property any earlier than he could.

the court would decide at the end of the case whether he contributes towards your costs. £3-5k seems a little low unless you're in legal aid. I'd expect it to cost a little more to include a final hearing.

As for child maintenance, unless you have evidence that he cooks the books, you'd have to apply for a variation after the initial assessment - eg on the ground of lifestyle being inconsistant with declared income. Gather your evidence now. The CSA website will give information about this.

WADA Wed 09-Mar-11 06:41:55

Thanks Resolution - I struggled to understand the family law week article LOL but I'll forward it to my Solicitor and check whether I've misunderstood.

I've been signed up on 'legal help' - could this be why I've been quoted 3-5K? It was only an estimate though. I was told that the costs would be applied by way of a charge on the property. Presumably that would mean that effectively ex would be paying half anyway wouldn't it if we were getting 50% equity each at the end?

Child maintenance wise I hadn't thought of it in terms of cooking the books. I had understood that what he could do is draw, say, minimum wage whilst retaining the rest as business profits. I suppose though that he would need to draw a certain amount to fund his lifestyle and that would have to be more than minimum wage. Would it be difficult for him to 'cook the books' as it were or is it relatively straight forward? At any point that he withdrew any of the business profits would he have to declare that and pay 20% of it?

Resolution Wed 09-Mar-11 07:39:32

It certainly isn't benefit fraud.

WADA Wed 09-Mar-11 08:34:50

Have I been misunderstood? I'm not accusing him of benefit fraud just trying to establish whether I can force him to be fair and go the 20% net salary route rather than his own lesser offer? I appreciate he can deduct appropriate expenses, pension contributions etc which I would expect him to do. Just don't know whether it's worth the bother of going the CSA route or just accept his deal? Again it's about trying to establish whether I have any control in this or whether I'm at his mercy.

Resolution Wed 09-Mar-11 10:37:23

Ignore the benefit fraud reference. I was responding to Ilovetiffany's post of 23 February - damn iphone got the pages mixed up.

The 3-5k will be about right for legal aid, but you would be responsible for paying it off, and the legal services comission would take a charge against your interest in the home on account of the fact that you had delayed a sale.

As for CSA - PM me about his line of work, but he's either a sole trader, in which case he gets assessed on the higher of his taxed income or his drawings, (the latter only after a variation application) or if he has his own ltd company, intially he'll be assessed on the basis of the salary and bonus he pays to himself, but then you'd apply for a variation and they'll then take into account what he pays to himself as dividend and also what he could draw from the company but chooses not to.

WADA Sun 13-Mar-11 12:58:56

I found this excellent article which sums up what Resolution has been talking about in terms of the remaining occupant being given credit for capital repayments

http://www.familylawweek.co.uk/site.aspx?i=ed1746

Thought it might be of use to someone at some point.

Resolution Sun 13-Mar-11 15:54:52

Familylawweek is a great website.

Xenia Sun 13-Mar-11 19:45:08

Do bear in mind that your income won't support the mortgage so he cannot come off it without rendering his children homeless and may well mean until your youngest is 18 he cannot get a mortgage and build up equity elsewhere. he is caught in a trap because he lived with someone who didn't earn as much as he did/gave up work. Next time he should ensure he doesn't end up with a housewife and then there won't be these problems. Women's lack of economic power never does them very much good nor is much use for their partners.

WADA Sun 13-Mar-11 21:25:58

Xenia - really?! I'm being extremely polite here but shame on you!

Xenia Mon 14-Mar-11 08:04:04

If you had a full time job you could remortgage adn buy out his half of the house and releaseh im from the mortgage and then he could buy a bome for the times when the children share their life with him which might be 50/50 and might even be more than that.

I could give the other advice which is never more in with anyone unless they marry you if you have a much lower income otherwise you don't get proper protection and if he won't marry you be wary of moving in.

expatinscotland Mon 14-Mar-11 08:41:47

Xenia's only saying what she always says.

Hopefully your youngest is under 7 otherwise it's Jobseeker's Allowance rather than Income Support.

And pretty soon, that age will drop to 5.

Hopefully you'll get to a place where you can move on from pinning everything round this house, because it's a bad idea in the current climate to assume benefits will keep you long-term sad. This government is making other plans.

Andywho Thu 17-Mar-11 01:35:34

Message withdrawn at poster's request.

Resolution Thu 17-Mar-11 06:39:12

WTF?

WADA Tue 12-Feb-13 15:18:37

I just wanted to post an update to say that the paperwork at the Land Registry was finalised today and the house has been transferred into my name.

I just wanted to offer hope to anyone caught in a similar situation that you can succeed. It has taken time, money, effort, stress and perseverance but the kids and I now have the secure base I so wanted for them.

Life is great now. I'm just over a year away from qualifying as a counsellor and I am piecing my life together bit by bit.

I know the issue of Schedule 1 claims comes up quite frequently and I'm always happy to walk someone through the experience I had.

RedHelenB Tue 12-Feb-13 18:59:15

That's good!

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