Mediation/Sharing of equity in property/Schedule 1 of Children Act

[RambleOn]

Has anyone used the mediation service for discussion of childcare or splitting of assets?

And does anyone know anything about Schedule 1 of the Childrens Act 1989? Apparently, there is provision there for some of the partnerships joint assets to be apportioned to the children?

If you split with your unmarried partner, was the split in equity 50/50, or did your DCs effectively get a share?

Questions, questions Any help much appreciated, am having a huge trauma

[RambleOn]

We own the property jointly. I have seen a solicitor, but she wasn't very specific, even when pressed. She is advising talking it through with the mediator. But I really need to know where to start my bargaining from iyswim.

I don't think it's possible that I could remain in the house, as partner has large amount of equity (approx the same as me) and also a medium-sized mortgage.

Does it matter how many children there are? We have one 20mo DD and I am 8weeks pg? Will this be counted as another child iyswim?

He has effectly put me in the position of not having enough equity to buy a property to house our children. I can't get a job as I am pg, therefore can't get a mortgage

[Spero]

That sounds a bit worrying if your solicitor can't give you more concrete advice. I appreciate that everything is very fact specific and the judge has a lot of discretion but the basic principles are pretty clear.

the children's welfare is NOT paramount in Schedule 1 applications but their needs will obviously be hugely important. it is possible that you could stay in the house and your ex won't see his share until the children are grown up. But only if this is affordable - the court will take into account the financial needs and resources of you both and he will be entitled to argue he needs somewhere to live as well.

the fact that you are going to have another child is relevant as that child is going to cost money when he or she is born.

Mediation can be good but you need to be confident in your legal team, should it go to court. is your solicitor a specialist family practitioner? If not, I would seriously consider going to someone who is. You really need a 'feel' for family law to be any good at it and someone who only does a few cases a year is likely to be a bit rubbish.

[Spero]

That sounds a bit worrying if your solicitor can't give you more concrete advice. I appreciate that everything is very fact specific and the judge has a lot of discretion but the basic principles are pretty clear.

the children's welfare is NOT paramount in Schedule 1 applications but their needs will obviously be hugely important. it is possible that you could stay in the house and your ex won't see his share until the children are grown up. But only if this is affordable - the court will take into account the financial needs and resources of you both and he will be entitled to argue he needs somewhere to live as well.

the fact that you are going to have another child is relevant as that child is going to cost money when he or she is born.

Mediation can be good but you need to be confident in your legal team, should it go to court. is your solicitor a specialist family practitioner? If not, I would seriously consider going to someone who is. You really need a 'feel' for family law to be any good at it and someone who only does a few cases a year is likely to be a bit rubbish.

[RambleOn]

Yes, the solicitor is a specialist family lawyer, but she certainly didn't inspire confidence.

I just don't think me staying in the house is possible. Ex would be left with nothing, and be unable to house himself. Tbh, would prefer to move on anyway and sever all ties with him (apart from the children obv)

[RambleOn]

So, if I were to receive more than a 50/50 split, my ex would be entitled to that money back when the youngest child reaches 18? I take it that this is index linked or a percentage of the value of the property?

[Spero]

I think you are right, you won't be able to stay in the house if it would leave ex with nothing.

If you own the house jointly and have confirmed that you own both the legal and beneficial interest jointly it should be very straightforward and you shouldn't have to get embroiled in big legal action.

Problems might come if he argues that although you are joint legal owners, he is entitled to all or most of the proceeds of sale as you do not have a beneficial interest; for eg did he pay all the deposit, all the mortgage, did you ever discuss, write down how you would own proceeds of sale?

that however won't be a family issue but a civil law issue and you'd need a good civil lawyer!

I hope it doesn't come to that, but the bottom line is that you need to feel comfortable with your solicitor. Trouble is, the good ones are often very busy.

[Spero]

Bascially, if it were affordable, the court could order that your ex 'lend' you his share so that the children can carry on living there. You would be expected to pay him back when they were 18 or finished full time education. there are different ways of doing this, the most straightforward is as a percentage of what house eventually sells for - therefore if it goes up in value he benefits, but if it goes down, you don't lose out i.e. you don't have to pay a specific sum.

You might not have to sell if you could buy him out.

[RambleOn]

I put down roughly £120K, he put down roughly £100K. He has been paying mortgage for the 4yrs we have lived here, but I have made an equal if not greater contribution in terms of renovation costs.

He is saying that we greed to a 50/50 split of the proceeds if we split - this is untrue, we never discussed it at all.

[Spero]

but it can be rebutted with clear evidence that he paid deposit and all mortgage!

but this sounds unlikely scenario - you are not arguing to keep the house after all??

[RambleOn]

I think I could house our children reasonably well taking £140K of the equity.

I have no job to go back to after the baby is born. I took redundancy at the end of my maternity leave last time round. My job was quite well paid, but very specialised, and I will find it difficult if not impossible to find another job paying decent money.

[Spero]

yup, well aware of Stack and Dowden, didn't think it had done away with resulting trusts.
but this isn't relevant to the op and just highlights the difficulties if things get nasty.

if it is a straightforward 50/50, sell and split the money. Probably best all round as I can't imagine it is easy for people living in houses they know they will have to leave once their children grow up.

and in my experience family lawyers who know about trusts are relatively few and fair between.

[Spero]

er, I mean 'far' between

[RambleOn]

We have never held any joint accounts.

At the time of buying the house, he did most of the legwork as he worked shifts and was around during the day. I looked into the tenancy thing at the time, and asked him to make us joint tenants, which I thought he had. (I did this as I understood at the time that it gave us the 'right of survivorship' if one of us were to die, and our childrens interest in the property would be protected).

I have now found out that he never did this, and we are tenants in common. (I think this was accidental rather than malicious on his behalf)

[RambleOn]

The current equity is difficult to determine given that the market in our area is completely stagnant. At a rough guess, I would say it was only £210K.

[RambleOn]

And they are saying that it will take a year to sell - during which time I've got to continue living with him

[Spero]

It sounds as if its not worth arguing about. You made a greater initial investment but then he paid the mortgage for 4 years. that might even out if you paid comparable amounts in rennovation work... but by the time you've got to court to argue all this out you will have spent a lot on lawyers...

Specific advice should obviously be avoided on this sort of forum as so much of your circs is unknown, but as a general proposition sounds like its not worth attempting a legal action to get a greater share than 50%.

But find a solicitor who can explain things clearly. Agree with Mrs P - a good solicitor will have the confidence to be clear about the underlying principles by which court operates, while stressing of course that you cannot guarrantee certain outcomes and much will depend on the evidence available at the hearing.

[Spero]

We are probably making the op wish she had never started! But maybe its helpful as it does highlight the difficulties in this area of law.

rambleon - if you get £140K he would be left with £70K is that right? That's not a bad deposit, if he is earning a decent wage so maybe court would go for that. But you would have to prepare yourself to buy him out at later date, maybe at a time when in reality the children are in no way ready to leave home, as Mrs P says.

[RambleOn]

Yes, you're blinding me with science here

I agree that it would be better to make a clean break. But this leaves me in a position of being unable to buy a house for me and the children. I could move to a cheaper area I suppose, but here I have a good network of family and friends on the doorstep. I am worried that I will have to move away, have another awful labour and c section and be unable to cope.

He is earning a decent wage, but is self-employed. He has already intimated that he will drop his hours so that when he is assessed by the 'system' it will look like he earns less. He has also suggested that he gives up work and has the children so that 'YOU can pay ME money for the rest of my effing life'

[RambleOn]

If I went for that scenario, where I end up 'owing' him money when the children were 18, could I work really hard to save the money and pay him off early?