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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

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 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.

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