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Legal matters

Unmaried Couple splitting

34 replies

Leah4 · 02/03/2011 11:36

Hi, I would be grateful for some advice for my friend.

She and her partner of 10 years is considering splitting up. They have two young children aged 3 and 7, and were engaged. He owns the house they live in and she soes not have her name on the mortgage or Deeds (yes not wise!). She has been with him since buying the property and they bought it on the consideration of it being a jjoint, family home. Albeit not legally. My freind has always paid for all of the children's clothes and related items,holidays, towards some bills, repairs and home improvements.

She has a small flat property which was bought 8 years ago which is rented out, and is 2hrs from their home. She has has said she could sell it in 2 years after her fixed rate mortage ends, or it will incur a large penalty before.

My freind understands that she cannot get any equity if they sale the family home, and it would be low, as the mortage is quite big.

She would like to stay in the family home,even until the children reach 18,if possible, due to schools, and hopefully less disturbing for the children.

Her partner has earned quite alot more throughout the relationship, and she works part time. He seems quite fair to sort out something reasonable for the children. He does not think he can afford to rent privatelty.

What do you think woukld could do as she no longer wants to continue living with him, as it has become very strained.

I had advised that she would probably not get housing benefit as she has a property. Is this correct?

What would a fair split of assets be?

Should she share 50% of the equity from her flat with him?

Thanks

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cestlavielife · 02/03/2011 11:45

she has no rights to his property and he has no rights to hers. engagement does not bind them legally.

the only issue is child maintenance here - so whoever has main residence of children can calim child maintenance from the other. but if 50/50 shared residence then there prob would be no child maintenance.

dont see how she can argue she should stay in his house - unless he agreeable to that.

she could move into the rented out flat with the children?

the income from the rented out flat would be taken as her earnings so yes would affect HB.

if she has made a major contribution to home improvement and has proof of that that may count for something. but we talking if ahs been 10,000 or 20,000 or a complete extension and if proven was HER money only.


she could try looking at TOLATA following gives good summary
www.edwardsduthie.com/case-plan-for-trust-of-land-act-(with-children).html

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Leah4 · 02/03/2011 11:57

Thanks Cestlavielife for the quick reply.

My friend would like to be the the main carer of the children to her partner's work. She does not receive any income from the property as the rent just covers the mortage.

Would she still not receive housing benefit in view of this?

Her partner may consider moving out as he would like to continue to be close to their children, rather than my friend moving over two hours aways to her flat.

If she did, could she pay towards the mortgage? She understands this still will not give her any interest in the property when sold.

They have not had major home improvements done, only general updating I think, she has paid equally for.

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cestlavielife · 02/03/2011 12:01

she would be effectively renting from him then?

if she becomes the renter from him with official AST rent book then potentially she could get HB? (depending on what they take into account from her rented out flat - in some cases the amout of rental received is perceived as gross income even tho most of it goes out again to pay mortgage)

but if father of children's name is the landlord HB people might see it as odd?

she needs some legal advice.

or they could both see a mediator and draw up some kind of agreement.

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Leah4 · 02/03/2011 12:24

Yes I also thought the HB people would think it odd if the landlord is also the father, Cestlavielife . Probably very unlikely.

Does anyone know about this? I will ask her to contact the HB department.

Where is the best place to start finding a mediator and legal advice? Would legal aid be possible based on her salary?

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Resolution · 02/03/2011 12:29

I can confirm that your friend would NOT get HB if the landlord is the children's father. This is because he has a legal duty to house his children.

TOLATA claims are very technical, so she should see a solicitor about it.

The capital in the other property will be taken into account when assessing her right to receive HB.

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Leah4 · 02/03/2011 13:56

Thanks Resolution for the confirmation. My freind does, I believe,have some equity in the rental property. yet probabley not enough to buy a flat at present and get a mortgage on her salary. She works part time.

Could you recommend a good Mediator or solicitor? And would she be applicable for Legal Aid?

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cestlavielife · 02/03/2011 14:19

legal aid may be complicated by fact she has equity. she needs to ask a few solicitors and look up legal aid entitlement

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darleneconnor · 02/03/2011 14:30

tbh it sounds like she will just have to move into her flat.

She has no rights to stay in his house.

She cant claim HB on anywhere else as long as she has this flat, regardless of equity/no rent excess.

If she cant afford private rent then she will have few choices. She wont be eligible for a council house. Will she lose a lot of mooney if she sells the investment flat?

If they are on good terms, would her soon to be exdp agree to her being put on the mortgage/deeds now?

Coould she rent out her flat to him, so she can stay in the house?

This is more of a financial rather than a legal issue so a soolicitor would be of little help.

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cestlavielife · 02/03/2011 16:07

there is chidlrens act and child maintenance issue and where will children reside.

if they amicable and can sit with each other or with mediator and come to some kind of arrangement then all well and good.

if there are other issues eg around contact and residency then might need legal advice

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Resolution · 02/03/2011 16:20

She may have a claim under the children act for settlement of property (there have been loads of threads about this recently).

The capital in the flat will make her ineligible to receive legal aid if it's over £8000. That figure will soon change to £1000. It will be ignored though if they are living together.

The government, in it's infinite wisdom, does not want to fund cases like hers in the future, so she'll be on her own if she can't afford legal representation.

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Leah4 · 07/03/2011 11:55

Thank you for advice and messages - all very helpful for my friend. I have not been able to reply sooner until now due to work.

My friend has now discussed options of what next with her DP. They are still living in the family home, which has created a lot of stress.

What could she do short term, as she cannot afford to move out, and her DP says the same, and her family are in the North of England? Parents live in abroad.

She cannot yet sell her rented property for 2 years due to the mortgage penalty charges. The flat is 2hrs away, and they both want to be near the children, and schools etc. The schools in the area of the rented flat are quite bad. They want to stay in the area they are in.

Her DP says she could leave and the children stay there, but she is the main carer, and she does not want to do that.

If he moved out, she would get more tax credits, which he could use to pay for another flat. Her DP has also talked of selling the house/remortgage to release some money, but would need to be quite a lot to buy somewhere due to friend's salary.

Would it leagally be expensive for her to do a TOLATA claim?

Also, how does she sort out custody - should she decide on joint care, and decide where the children's main carer will be?

Thank you!

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Resolution · 07/03/2011 12:11

she needs to sit down with an experienced solicitor and get proper advice. TOLATA claims are very technical. Children Act claim may be the best way for her to go, but there's no substitute for a proper diagnosis and proper advice.

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Leah4 · 07/03/2011 12:16

Thanks Resolution for the speedy reply.

Yes I think she does need to see a solicitor regarding custody and possible TOLATA.

How can she find a good family solicitor?

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Resolution · 07/03/2011 12:40

where is she?

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cestlavielife · 07/03/2011 12:45

yes TOLATA you need a barrister probably - but she could employ one directly.

its residence not custody.

" she would get more tax credits, which he could use to pay for another flat. "

bit dodgy - she will get credits and give them to him? either they going to split financially or they not...

she needs a solicitor.

it is his house.
she has no rights to it as such.
if they both agree she should stay in the houise then fair enough - but if he telling her "you move out and we share residency 50/50" then i cant see any reason why not?

the children have rights.
both parents have responsibility towards the children
the children need a residence (or joint residence)

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freshmint · 07/03/2011 12:54

Did she contribute anything to the purchase price directly or indirectly (eg pay off his debts so he could get a mortgage or something like that?). Did she make mortgage payments or make other contributions like pay for building works or pay the bills IF by doing so she enabled him to meet the mortgage payments? Was there any express agreement at the time that she should have an interest in the property?

Basically if he owns it in his own name there is a presumption that he owns the beneficial interest in its entirety. She would have to disprove that presumption by showing that she did have a beneficial interest in her own right - by doing one of the things above. If she can show that then it would be up to the court to decide how big her interest should be, in the interests of fairness.

It is expensive to litigate under TOLATA and therefore if there isn't an fairly clear case she shouldn't go down that road.

She needs to go to a solicitor and give her/him the full story and get some advice.

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Leah4 · 07/03/2011 13:06

Resolution - my freind lives in Hertfordshire.

Cestlavie - She did not pay towards the deposit, but spent a lot on building work. She will speak to a solicitor on whether this route can be taken, but looks unlikely. She is the main carer, due to his work, so having a shared residency would be difficult. Would it also be more difficult for the children sharing two different homes each week?

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Wamster · 07/03/2011 13:13

Agree that the starting point is that it is his house. This is the default position as it were.
I agree with everything freshmint says.

To be honest, legal representation/solicitors do not come cheap (why should they? They are professionals after all) and perhaps-just perhaps- the cost of using their services may outweigh any possible financial gain for your friend especially as-in the absence of her name being on mortgage/deeds -things are not clear cut. But then had she been on mortgage/deeds, there'd be no problem anyway.
Do think this needs consideration in all of this.

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Wamster · 07/03/2011 13:18

As for any other assets, I think they both take what they came with and what they bought during relationship with them. If purchases bought jointly, then obviously both have half each (as a rough guide).
I think your friend needs to stop thinking of this split as being like a divorce. There is no division of assets as such like in a divorce with a cohabiting couple, they are effectively legally two strangers who have shared a house for a while.

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Bramshott · 07/03/2011 13:19

Can she not sell her flat and 'port' the mortgage to a new property she is buying? We did this when we were still in the fixed term and it was pretty easy.

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Resolution · 07/03/2011 13:24

Wamster - don't forget about a Children Act claim. they are not legal strangers due to that.

Leah - tell her to look at this

www.hertsfamilylaw.co.uk/

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Wamster · 07/03/2011 13:32

Resolution I respect what you say, but wouldn't it be a case that the Children's Act is there for the children and not the mother's benefit?
Or am I wrong, and the 'judge' can order the mother receive money for her benefit?

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Resolution · 07/03/2011 13:39

You're right, but under the children act the court can let her stay on in the house if needed to house the children. She won't be entitled to any of it on eventual sale if she can establish an interest in it using established land law principles.

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Leah4 · 07/03/2011 13:48

A big part of the problem is not having her name on the Deeds, which her DP was never keen on, even with her paying out all her salary on kids, child care, household related expenses.

Bramshott - she could port her mortage but could probably only afford a one bed property due to her part time salary.

She is thinking for a positive outcome solely for her children.

Thanks for the link Resolution

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cestlavielife · 07/03/2011 13:48

for the sake of argument, the children could reside in the fathers house with the father, as is his house.

she could move out and father could drop the DC off there whenever needed for childcare.

why would a court decide she should live in his house with the children?

if he is saying "it is my house, you move out, i stay here with DC and you have contact as we agree" then surely that is a valid option if there are no welfare concernes?

surely court could equally decide he has residency there in his house with the children and they have contact with mother?

the point about porting a mortgage is relevant too - it would mean not having to pay the penalties (maybe) and perhaps selling to an investor as a rented out property.

many things to consider...

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