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Separating: I have been offered a job 5 hours away fom where ExP lives. Can he stop me acceting the job and moving with DD?

(52 Posts)
Iamamesswhy Sat 15-Oct-11 23:54:28

A bit of background: I separated from ExP almost 6 months ago. As I am from abroad I have not been receiving HB and CTB (it seems to be right although I have an appeal in place). At the end of the month my JSA contribution based runs out and I have been told that I will be declined JSA income based as I have a financial interest on a property ExP and I bought together and which he has kept. He should pay me off but he is not willing to pay me at all. He has declined twice to go to mediation and last letter from my solicitor advise me to accept his last offer which is just half of what I am legaly entitled to.

There is a delcaration of trust signed between us but my solicitor is telling now that because I have never paid towards the mortgage, even though I have paid utilities bill and food, the declaration of trust may not be legally binded and if we go to court and I do not get what I am entitled to I will have to pay my costs plus ExP's. This would mean that I would be left with nothing after I have had to pay all the costs.

So the reality is that if I accept his last offer (which I am considering) I will not get any benefits at all and DD and I will become homeless by the end of the month. Now the solution is that I have been offered a job in the south while we live in the north and I am going to accept it. So my question is what can ExP do to stop me moving and accepting this job? It is the only option I have to provide for DD as I have been looking for work fo the last 7 months and even though I have sent plenty of application forms nothing seems to come where we currently live. I will have to start working mid November so I am planning to move by the end of the month with DD.

Any help much appreciated. Thanks in advance

Tyr Sun 16-Oct-11 00:08:35

He can apply to the court for a Prohibited Steps Order to prevent the child relocating. It will delay your move; whether it is successful as a permanent measure depends on a variety of factors.
What age is the child? What level of contact does he have at present? What proposals are you making for contact after moving?
Have you spoken to the CAB about your benefits?

MeMySonAndI Sun 16-Oct-11 00:15:11

I doubt you will be forced t stay where you are as you simply cannot survive without a job, the job is in the south, and everyone knows how difficult is to find a job in this times.

However, if he applies for a prohibition of steps order, he will be heard. Which means the court may delay your moving until a resolution is achieved and by then most likely, your job offer will be gone.

Having said that, if you are the resident parent, have moved already or before a court order is in place, I doubt a court would be able to order you to move back. However, they may order you to contribute to the costs associated with contact.

Iamamesswhy Sun 16-Oct-11 00:17:10

I have been talking with the solicitors about my benefits and there isn't much left. Probably if he was willing to pay me off then it would be a bit different.

How long does it take to apply for a Prohibited Step Order? DD is 2.3 yeas old and we have just come back from where we are moving after spending a week and he has not even bother calling her to talk with her. At the present he is seen her two evenings per week and one night at the weekend. That was my proposal before we moved out.

If I wait two days before we move, can he get the Prohibited Steps Order before we are moving? I do not want DD to stop seeing her dad but I also need to think of providing a house for DD and beng able to feed her and at the moment the only way of doing all this would be accepting the job and moving

GypsyMoth Sun 16-Oct-11 00:18:56

How will you afford to secure accomadation in the south if you day you will be homeless if you remain in location you are in now?

Iamamesswhy Sun 16-Oct-11 00:20:37

MeMySonAndI: we have not reached a separation agreement yet and I know he is not willing to pay me off but I do not know if he accepts my last visinting rights proposal. He has never really propose anything about visiting rights, he only thinks about the way of not paying me off or paying me as little as possible. THat is why I amhaving so much problems. Snce May 2011 he has not even paid the full child maintenance yet shock

Iamamesswhy Sun 16-Oct-11 00:21:34

I will be moving with a work colleague for the time being until he pays me whatever he is willing to pay me and then I will rent something for DD and myself

GypsyMoth Sun 16-Oct-11 00:22:13

And he will be ok with his dd living with a stranger?

Iamamesswhy Sun 16-Oct-11 00:22:20

The problem is that without JSA I cannot afford the rent and the only job offer I have is in the south

Iamamesswhy Sun 16-Oct-11 00:23:50

It is not a stranger. He knows the person we will be moving with as we used to work together where I live now. The job is with the company I used to work before I resigne after my maternity leave ended

Tyr Sun 16-Oct-11 00:31:15

http://www.mumsnet.com/te/9.gif

Iamamesswhy Sun 16-Oct-11 00:33:54

I know Tyr, very difficult situation. I have done everything I could until now and at the moment the only solucion I can see is acceoting this job offer which I know he won't be happy with it. What else do I have left?

Collaborate Sun 16-Oct-11 00:39:37

1. He can't stop you moving to somewhere else in the country (although if residence of the child is shared then you may have to apply to court for a sole residence order).
2. Maybe get a new solicitor. I'm very concerned about them advising you that the declaration of trust about the property ownership. A trust declaration doesn't need you to do anything in return such as pay the mortgage. Is there anything else to this side of things? Am I missing something?

Tyr Sun 16-Oct-11 00:51:29

Collaborate, he can prevent the child moving, depending on the circumstances. I have seen one internal relocation from London to Brighton blocked and another from London to Cornwall.
It is a myth that internal relocations are never stopped by the courts.

Collaborate Sun 16-Oct-11 00:59:26

They are only blocked in exceptional circumstances. I've only had one blocked, where it involved existing residence proceedings, and the parent with care running away from a social services investigation into them.

Tyr - did your cases involve shared residence?

The circumstances OP relates do not make it sound like one of those exceptional cases.

Tyr Sun 16-Oct-11 01:15:18

Collaborate,

One had a pre existing SRO with midweek overnights. In the other, an SRO was made but the mother had a history of misleading the court on a number of issues and obstructing contact with the father. Her plans for childcare were also shoddy and unconvincing.
The deciding factor is not the Shared Residence Order per se. It is largely irrelevant for all intents and purposes. It is the nature of the relationship with the parents.
The recent CK v MK ruling (whilst addressing external relocation) sets out the arguments. As pointed out there, there is very little or no difference between a SRO and a Contact order.
An internal relocation is more difficult to block than an external one but not as difficult as it was.

Iamamesswhy Sun 16-Oct-11 08:38:49

Coolaborate and Tyr this is all the information and as it is.

Being with Exp 6 years, we bought a house and we stay together in the house for 4.5 years before I decided it was enough. He is very controlling and very good with the words he uses. We went to relate for nothing as he would not even try what was told to him.

It was my decision to separate and he made it very clear that he would not allow me to stay in the house as he would become homeless even though his parents live near by. I am from Spain so I do not have any fammily close by at all. Also when my maternity leave ended we jointly decided that the best for our daughter was me giving up my job and look after her full time which I did (very big mistake, it won't happen to me again angry).

He has changed solicitors in mid summer and they are very agressive and not pro-mediation. My solicitors refer us to mediation when we separated and he declined it saying the it was a waste of time and money. At the end of September we where refer to mediation again and his new solicitors sent a letter to my solicitor saying that in a case like ours it was time wasting and unnecessary shock.

Up until now my solicitor has always told me that the Deed of trust gave me all the reasons to claim what I am legally entitled to. Now suddenly in their last letter they are telling me

"On the basis of the previous calculation within our letter, we calculated your interest in the property at approximately _____, if you were able to establish that the Trust Deed should be legally binding.

However, given that you have not made a contribution towards the purchase of the property, nor towards the mortgage, there is a possibility that the Court may reduce your potential beneficial interest in the property under the Deed on that basis.

I therefore advised you to consider the further offer put forward by ExP within their letter dated ________, very carefully. If you do not accept this offer, and the matter proceeds to Court, there may be cost implications.

You would need to obtain public funding in order to make an application to the Court, and the statutory charge would apply. This means that should you recover any money or property as a result of the proceedings, you would need to pay your legal costs back to the Legal Services Commission.

On the basis that ExP and his solicitors are likely to be opposed to your application, and to the figure you are seeking in terms of a settlement, it is likely that you would incur substantial costs in order to reach a Final Hearing, and for the Court to make a decision about financial matters. You may therefore end up paying more in legal costs than the amount you would actually recover as a result of the proceedings.

Further, if you did not succeed in obtaining the full ____ that you are seeking, you may be ordered to pay ExP's legal costs also."

How is all this possible? I am considering a formal complaint to my solicitors as I feel I have been missguided for a while and they have not been able to keep me up to date with letters.

Please advice needed. Thanks

babybarrister Colombia Sun 16-Oct-11 09:40:27

I am also concerned as to why it isj being suggested that the deed is not binding. Would seem v odd. Get some more advice .....

Collaborate Sun 16-Oct-11 10:04:22

The deed is binding - absolutely. The fact that it's a deed means that you don't have to prove what you paid towards it. A deed is enforceable in law despite the absence of "consideration" (which means -for a contract to be enforceable, if A promises to B to do X, B has to promise to do Y in return). A deed needs no promise making in return to be enforceable. Let me give you an example:

1. I sign an agreement with you that says I will give you £1,000. That's unenforceable, because you're doing nothing for it. If the agreement says that in return you'll clean my car, then you've provided consideration, and the contract can be enforced (it doesn't matter that I'm paying you far more than the job is worth - the law doesn't inquire about the adequacy of the consideration).

2. We both sign a deed, saying that I will give you £1,000. You don't have to do anything in return. You can enforce it, because it's a deed. End of story.

If I were you I'd ask someone more senior at your solicitors to review the advice you've been given re the house, quickly, and then come back here and tell us what they say. Don't agree to anything in the meantime.

Iamamesswhy Sun 16-Oct-11 11:38:12

Thank you very much for all the advice. I have been very confused as why suddenly my solicitor has changed her mind and told me that the deed wasn't binding. I will seek more advice regarding this matter. In the mean ime could anyone let me know what can happen regarding DD and I moving. How quickly ExP can apply for Prohibited Spteps Order? Not sure how it works and I strongly believe DD and I would benefit from the move.

Thanks again

raspberryroop Mon 17-Oct-11 09:11:43

Just move and then let him spend money opposing it

GypsyMoth Mon 17-Oct-11 09:21:12

Are you prepared to return your dd to him fortnightly fir the weekend? And collect her again afterwards?

Have you thought about your dd seeing her father?

Tyr Mon 17-Oct-11 16:28:45

If you move without his consent, it will not go down well in court if he brings the case.
You may well be made liable for all the costs of maintaining contact. In one recent case I know of, a child was returned to the father by virtue of a residence order. That was quite unusual but, without knowing all the details, it can't be completely ruled out in your case.
In short, do it properly; either by agreement or court order.

Iamamesswhy Mon 17-Oct-11 22:22:45

Tyr, do you think this would be enough reasons to get an agreement with ExP? I am sending ExP solicitors a letter (through my solicitor explaining the reasons behind the move which are:

1. I am from abroad (Spain) and I have been struggling with benefits since we searated. I am not entitle to IS as I am classed as a person from abroad and I would lose my rights to work in the UK (checked this with other solicitors and they are right). So on JSA contribution based at the moment which runs out at the end of the month and they won't be giving me JSA income based as I have a financial interest on a property and the DWP believe I am entitle to enough money from the property to get benefits at all even though ExP does not want to pay.
2. Once my JSA runs out I won't be able to pay the rent and DD and myself will become homeless. I am not getting HB or CTB. I do not believe that it is in DD best interest to go to a women centre so my only option is to move to the south and work.
3. I have been looking for a job in here for the last 7 months and even though I have sent a lot of applications I have not got an interview. NOw I have been offereda job and I can't say no.

I am not doing this to get DD from her dad. I am prepare to bing her to see her dad once a month and her dad can come and see her the other weekend that we should have her. So this way we are sharing the costs of travelling.

Do you think I have a strong case to be allowed to move? Or a judge may decide that I have to stay in here where I do not have a job and we will become homeless by the end of the month?

Any advice much appreciated, thanks

Tyr Mon 17-Oct-11 23:36:15

Yes, it should be and, if you are offering to share the costs of maintaining contact, it's unlikely a court will stop you.
Are you entitled to Legal Aid and has the father made any moves to prevent you going?
No court will want to see you and the child homeless.

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