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Section 1 - children act advice?

(11 Posts)
mummy382 Fri 08-Apr-16 18:18:34

Hi

Me and my ex have 3 young boys together and separated last year. We jointly own a house where there is equity for us both.

He's using a solicitor - i am not as cannot afford to as the little ones to care for.

I can afford to get a mortgage in my name and pay him a sum of around £20 - £24k - he will be entitled to potentially £40 k but I cannot afford to give him that at present.

I don't want to move as there is £5K cost for indemnity, and at least £5k for selling.

Equally the little ones will be unsettled emotionally - they are struggling enough as it is, I wont be able to buy a 3 bed again and renting runs the risk of huge instability for them,

I am wondering if it comes to it could I make a claim under section 1 children act for transfer of property or to stay here for a period of time.

I am happy to pay what he is owed but cannot pay it all right now?

Thank you

Lonecatwithkitten Fri 08-Apr-16 18:35:22

Were you married?

mummy382 Fri 08-Apr-16 20:42:03

No we were not xx

Help201602 Fri 08-Apr-16 21:39:39

Watching with interest, as I'm in a similar situation. It's my understanding that as not married, he can force sale regardless of children, but then again I've had no legal advice either!

mummy382 Fri 08-Apr-16 21:52:39

Help201602 - that's what I thought initially but if you google section 1 childrens act - force the sale of the house im not so sure.

I wonder if it depends on whether you can afford to take over the mortgage or not xx

runningincircles12 Fri 08-Apr-16 22:34:27

Yes, potentially you can. A Schedule 1 claim can be heard concurrently with an application under the Trust of Land (Appointment of Trustees) Act 1996 (TOLATA) (which is the application you would bring for an order relating to the property).

I would advise you to seek some legal advice before making an application, to get an idea of your prospects of success. Just because costs of sale would be incurred does not mean that the court will definitely transfer the house to you. Even if they did, a Schedule 1 order only lasts until the children are 18 and therefore the house would need to be sold then. Even an hour's consultation would be worth the money (the free half hour appointments that some solicitors offer are usually not enough to get in-depth advice and you rarely get an advice letter).

You could also try mediation to try to resolve the issue between the two of you. It may be that he would be prepared to accept partial payment now and then a percentage share if the property is sold when the children reach majority. To find a Resolution-accredited mediator, go to www.resolution.org.uk.

runningincircles12 Fri 08-Apr-16 22:43:11

Help201602, if an application is made under TOLATA for sale of the house, the fact that the property is the home of a minor will not usually be enough to prevent a sale being ordered. In rare cases, it may be postponed for some time.

Under schedule 1, the court has to explicitly consider the financial needs of the child, so the legislation is much more child-focused. However, the child's welfare is not paramount under schedule 1 and the court also must consider the financial resources of the resident and non-resident parents. As is the case where the parents were married, the fact that a move may disrupt the children is not normally enough to justify an outright transfer to one parent. It's impossible to advise on what is likely to happen without there being full financial disclosure from both parties.

One thing you could consider, OP, is whether your parents or any other family members would be willing to stand guarantor for a mortgage. That might mean that the bank would lend you more money than they normally would and you could potentially pay him off.

Huppopapa Thu 14-Apr-16 21:10:38

Um...
One of the things the court is obliged to consider on an application under TOLATA (Trusts of Land and Appointment of Trustees Act) is the purpose of the trust (which in the context means the joint ownership of the property) in the first place. If it was to provide a home for the parties' children during their minority then the party seeking a sale might not be permitted by the court from resiling from that i.e. the court can refuse the sale until the children are adults. Whereupon he would get his investment, adjusted to take account of the increase in value.

mummy382 Thu 14-Apr-16 21:45:53

Okay so that works the same because we are unmarried?

I only potentially want it delayed for 3 years to be honest?

Huppopapa Thu 14-Apr-16 21:48:44

Well that seems entirely doable.
TOLATA only applies because you weren't married. (If you had been there is a different statutory regime under which you would have far less trouble getting an order of the kind you seek.)
This is quite technical stuff though, and entirely under the discretion of the court so one had to tread carefully about definitive statements.

runningincircles12 Fri 15-Apr-16 10:25:07

Huppopappa, yes I do know that the purpose of the trust is one of the factors that the court will consider, as well as the welfare of any minor who occupies the property as his home. However, it is more likely that the purpose of the trust will be held to be a 'family home' rather than specifically providing accommodation for the children. The family relationship has now broken down and effectively the purpose of the trust has come to an end, although the children still live there of course. It's not as straight forward as the court always deferring sale until the children are 18. There is no statutory provision saying that the interests of the children will rank above other considerations. This is why I mentioned a joint Schedule 1 application.

But as the OP now says that we are only talking about a period of 3 years, that is different to if were were talking about 15 years. You do need to seek legal advice, OP, but I don't think that sounds unreasonable. Especially if your ex is given half his equity now and the rest on sale. If the matter went to a trial, you might be looking at a significant period of time before any order for sale was implemented anyway. And of course, the court may well defer sale for three years.

You might still want to consider what i said about getting a guarantor for a larger mortgage. That way you wouldn't have to sell and would benefit from future increases in value.

But as I have said, do get legal advice. TLATA applications are tricky and can have severe cost implications. If things are amicable, you could try mediation. From what you have said about the short deferral period, it sounds like you could reach an agreement.

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