Should I return to former marital home? Legal advice needed please.

[grantie2012]

New here and wanted some advice about housing/domestic situation. will try to keep a very long story short!! I left my abusive husband 11 months ago and went to a refuge for 3 months. In May 2011, I moved back to the local area (15miles from where my ex is.) The reason I moved back was because the children were so unsettled and wanted to return to their schools (which are in the village where ex is living.) I consulted a solicitor to apply for Occupation Order so children and I could return to the house. This has still not been applied for because

1. Solicitor is crap - I have made a complaint about her
   
2. Ex assualted me in July, so I did put things on hold for a while as I was distressed.
   Anyway, I take the children to school everyday and thought that by now we would have been back in the house. The solicitor is adamant that I will not get the house through court as ex has his 14 yr old son living with him, and even though I have 4 children and connections with the village, that I won't be awarded the house. My ex has moved in his sons mother about 3 months ago and she is living there!!
   Anyway, my ex went to court in Dec for the assualt and was found guilty. On 5th Jan, the magistrates court gave a 2 year restraining order which states that he cannot contact me directly or indirectly and cannot come to my home address.
   Because the situation has been going on for so long and my solicitor seems to think he is in the better position as he is in the house, I am wondering whether I should just go back to the house when he is out and refuse him entry, like he has done to me.
   My questions are
   
   
3. If I go into the house when he is out and when he comes back, refuse him entry, if the police come, and I refuse to let them in, would they be likely to make me let him in or tell him to sort it through his solicitor as its a civil matter?
   
   
4. Because I have the restraining order, if no 1 worked, could I then go to the court and change the address on the restraining order so that it covers that address, preventing him from being able to come there?
   
   
5. If he then went to court for an emergency occupation order, is it likely that the judge would award in his favour based on the fact that I haven't been living there for 11 months (even though he forced me and the children out)?
   
   If the plan did work, I would then give up the tenancy on the private rented accomodation as I would not be able to pay rent on 2 homes.
   
   Sorry for the long post, it's all a bit complicated but any advice gratefully received. By the way, it is a housing association tenancy in joint names. I know the HA won't get involved, they will tell him the same as they've told me - that it will need to be sorted in court.
   He also has significant rent arrears £1900 which he has run up since I left.

[grantie2012]

Bump:)

[Collaborate]

1. If you're in and he tries to force his way in it's an offence under the 1977 Crime Act. don't know whether he'd be in breach of his restraining order.
   
2. You'd have to ask a criminal specialist. If the bench has a discretion, they may refuse to exercise it as you'd put yourself in that position.
   
3. Depends on the judge. It's certainly possible that he'd get an order.
   

Why don't you just apply for an occupation order yourself? The court will apply the balance of harm test. Go about it the proper way.

[grantie2012]

I have asked my solicitor to go for an Occupation Order but she has not yet filed the application with the court. She is adamant that I will not get the order and that my name will be removed from the tenancy as she says that I have adequate accomodation and a judge would not put his son on the street (even though his son was not living with us when we started the tenancy) she says that the court will take him into account. The HA are sure that I would be awarded in my favour. I have been trying to do things the proper way, but my solicitor has done nothing. I have tried to find another solicitor but there isn't one in my area that will take on Legal Aid. I have made a complaint to her senior and asked for a new solicitor and am waiting for them to get back to me. I have just become so frustrated at the whole thing as it has been going on for so long and I just want things settled. I have to drive 64 miles each day to take the children back and forth to school and it is starting to get on top of me and my DS1 who has to spend 2-3 hours couped up in his car seat. I have explained all of this to my solicitor but she dosen't really care! I don't think its fair that he can just stay in the house and not pay rent, I have spent months asking questions and trying to resolve things, but it hasn't gotten me anywhere.

[grantie2012]

Collaborate - Can I apply for an Occupation Order myself without a solicitor?

[mumblechum1]

You can apply for an OO order without a solicitor, but you may be better off going through Women's Aid, who have people who will help you with it. Because an OO is a draconian step, the court doesn't dish them out routinely, so if I were you I wouldn't do it as a litigant in person.

[grantie2012]

ok thanks. Will try Women's Aid. It justs seems like I am fighting a losing battle!

[Santa5l1ttleHelper]

Womens aid are brilliant, they are well worth a try

[Collaborate]

Remember, that with rented property, a judge is going to want to ask why you can't simply rent somewhere nearer. Balance of harm test demands it, surely?

[mumblechum1]

Agree with Collaborate. As neither of you have any beneficial interest in the property, whether you rent the old house or the one you're in now isn't an issue worth spending any money arguing about in my view.

[grantie2012]

Have tried to rent closer but to no avail. As I am getting Housing Benefit, has been impossible to find a landlord to accept it! The reason I want to go back is because it is an assured tenancy and this is more settled for the kids long term, rather than moving every year or so as they have had so much disruption so far and I want to eliminate that. Surely if I was in the house I would be in a stronger position to get a transfer of tenancy into my name?

[STIDW]

My understanding is that once someone has left the former matrimonial home for sometime it is difficult to move back in. It isn't your home any more, you no longer live there, it's your husband's home. The court must be careful not to impose any greater restriction on the human right to privacy and family life than is necessary when considering an occupation order.