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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 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 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?!

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