Advice needed - separated with kids, rights about the house

[pinkcupcakefairy]

Hi everyone, I'm really hoping someone can give me some advice.

My friend has been separated from her husband for about a year. They have 2 children. He moved out of the family home and they have the standard system of the kids live with her the majority of the time, with him having them 1 night a week & every other weekend.

He has been a bit of an arse about alot of things eg giving no notice of not being able to have the kids on his weekend leaving her unable to go to work on the saturday, only paying for the things he wants to so she has to find the money for the kids hobbies, school trips etc.

However now he has told her she is going to have to sell the house as he cannot afford the mortgage. I am sure I have read on here and elsewhere that she has the right to stay in the family home until the youngest turns 18 and was really hoping someone could point me in the direction of some information which confirms or refutes this or any advice as to her current legal situation.

If anyone can help I would be so grateful, my friends at the end of her tether and obviously can't get to a solicitor for a while with the bank holiday & I would love to be able to give her some info as to her rights at the moment.

Thanks for all your help

[NotSuchASmugMarriedNow]

I've never known a judge turf children out of their family home.

However, the Bank or Building Society will reposses the home if someone doesn't pay the mortgage. If your friends ex doesn't pay, will she be able to keep up the payments?

[Sapphirefling]

Yes it's called a Mescher order and stops the sale of the house until the youngest child turns 18 or completes full time education.
It certainly adds stability for the children and if she is sure that he will continue to pay his half of the mortgage (perhaps in lieu of maintenance) then it might be the best option.
The downsides however are that rather than having a clean break financially, she will be tied to him in this finacial arrangement. If he runs up debts in future, the house will still be considered as part of his assetts so would be at risk then.
I'd advise her to think about her finances and see if there is ANY way that she can take on the mortgage herself ?

[perfectstorm]

You need to post in legal and not relationships, to get legal advice. I'm not a lawyer but as a general rule of thumb what you describe is way more black and white than the law actually is. It just isn't that simple.

What you describe is one form of order that can be made on marital breakdown but it isn't the only, or even the most common one. There are a range of factors that a court would consider and a solicitor will advise accordingly. Housing the kids is a priority in marital breakdown, but so is fairness and making sure neither side is destitute. There's no black-and-white answer. But when a married couple split up all assets from both parties get put into a pot - it's no longer what he or she own, it's family money and it is split according to perceived need, with the kids having priority. So if his argument is it's his house and she has no rights then that's bollocks, but if the mortgage is genuinely unmanageable now he has to also pay for a place for himself to live in, and your friend can't pay it either even with his spousal & child maintenance, then she can't really expect to stay either. I mean, he may be a git, but he doesn't deserve to be homeless, and you can't run two homes on the same money as one, to the same standard of living, unless you're seriously rich.

[pinkcupcakefairy]

Thanks for the info. This is all new to me so I'm just going on things I vaguely remember reading/hearing.

I think she'll be seeing a solicitor soon but its obviously a big worry for her having her home taken away from her.

[perfectstorm]

The other issue with Mesher orders is many women have found they're screwed when the kids are old enough - they don't have enough equity to buy anything else, and they are by then often too old to easily raise a mortgage as near to retirement age. And that's even without the problems Sapphirefling mentions. Separating the finances would usually be best if at all possible, IMO, especially if this bloke isn't reliable.

[FabbyChic]

Actually she would have to buy him out, she does not have the right to stay in the family home.

He doesnt have to pay the mortgage.

He only has to maintain his children.

She needs the advice of a solicitor.

[perfectstorm]

Honestly, post on Legal. There are about 4 family solicitors there who post regularly and give great advice. It would be a good starting point.

She also needs, IMO, to make sure her solicitor is a member of Resolution. Lawyers are not all created equal, and they aren't all ethical, either. Resolution would mean she knows they're committed to mediation, and family specialists - a bloke who writes wills 87% of the time is not the same.

[FabbyChic]

It may well be the house has to be sold, then she would be entitled to a share of the equity, she can use this to rent accomodation for herself and her children.

Generally when a couple split you cannot expect a man to maintain two homes, it does not work like that, she has to maintain her own home, he maintains he children.

[perfectstorm]

FabbyChic I don't mean to be rude but this is the 3rd time you've posted completely inaccurate legal information and claimed it is 100% fact. Family law is incredibly complex and varied because people's lives are, too. It's a great deal more complex than that and in fact married couples and this couple ARE married) DO have an obligation to provide for one another on separation if necessary and possible, and she may well have a right to stay in the home given there are dependant children and all family assets are in common when a married couple divorce. It all depends how much money there is to go around. Your statement would only be correct if they were unmarried.

Please stop offering definitive legal advice, at least without the disclaimer that you aren't actually in any way qualified to offer it.

[FabbyChic]

Im not qualified, generally doesnt the woman have to get her own mortgage and buy him out?

I know that a charge can be put on the house so it is sold when the children are 18, but in the meantime the husband does not have to pay the mortgage, the woman has to.

From reading the OP it sounds like the woman here cannot afford to, so therefore she wouldn't be able to stay in the marital home.

The law does nowhere state the man has to maintain mortgage payments, that would be utterly ridiculous.

But seriously I myself cannot understand any woman who would think the man still has to pay for a house he no longer lives in.

[FabbyChic]

PS I shall read legal so I understand the gumpth of it, however without all the proper information to hand no one person even qualified on a message board could give accurate advice.

A solicitor is needed.

[pinkcupcakefairy]

Thanks for all the messages. I take on board everything you've said, I wasn't sure if I was making up the mescher order thing but can totally see how this could be a bad thing for her, I just didn't want to tell her something that wasn't true.

I posted here rather than legal as I thought I'd get a quicker response. I'm not sure I have enough info for anyone to give me proper advice, I only know some of whats been going on. I think I shall be sticking with my advice of she needs to get herself to a solicitor pretty damn quick.

[mumblechum1]

Fabby Chic, sorry but you're talking nonsense.

I'm one of the family lawyers who post regularly on Legal and suggest you repost there.

It is true, as another poster has said, that the welfare of the children is paramount, but equally, if the husband is paying rent for somewhere else, plus utilities plus child maintenance then it is unlikely that he can also keep on the mortgage on the family home unless it is unusually small and/or he has an unusually high income.

The wife is generally expected to mitigate her situation by at least attempting to get a job if the children are school age.

It is very complex, there are few hard and fast rules and your friend needs to get a lawyer asap. //www.resolution.org.uk is where specialist and approved family lawyers are registered.

Mesher orders generally only work when the children are teenage and the wife can afford to pay most of the mortgage. The house is transferred over to the wife until the youngest child is 18, the wife remarries, cohabits, dies or voluntarily redeems the charge, whichever happens first. The charge will specify how the net proceeds of sale are divided, usually as a percentage rather than a lump sum plus interest.

[FabbyChic]

Op

post here

www.mumsnet.com/Talk/legal_matters

[FabbyChic]

www.mumsnet.com/Talk/legal_matters

[Sapphirefling]

And some couples come to an arrangement when a percentage of the mortgage is paid in lieu of maintenance. Some NRPs pay the mortgage as well as maintenance. There are a dozen different ways of
Seriously FC -I don't know what your agenda is but as Perfectstorm has also noticed, you post innacurate information as fact time and time again.

[FabbyChic]

Mumble, sorry its interesting is the husband then expected to maintain two homes? What about their interest in the property? when it is sold surely then he gets a bigger percentage of the equity if he has paid the mortgage so that his EX WIFE can live in it?

I just never understand why people cannot stand on their own too feet.

[Sapphirefling]

oops - there are a dozen different ways of resolving the issues - more in fact deopending on the circumstances.

[FabbyChic]

Do husbands still have to pay maintenance to a wife? Or is it just about providing for the children now?

[mumblechum1]

I'm just going to sigh now FC.



Before I go and open the wine, though, I'd just like to clarify that although you can capitalise spousal maintenance, eg through a higher equity share, you can't do that with child mtce as it's against public policy.

[Sapphirefling]

I msay just join you Mumblechum - I think that single mother bashing is the agenda.

[FabbyChic]

Thank you! I shall not post on these types of threads again I clearly know nothing! Has been 25 years since my parents divorced, Ma got to keep the house and dad got a charge on it.

[perfectstorm]

There is no generally on family property rights when people separate until you have a lot more information than this.

Family law is hugely complicated. I never, ever offer advice and always refer people to Legal - and I actually have undergrad and postgrad law degrees (my postgrad being a research one comparing the rights of married and unmarried people when they split up). But my studies are also almost a decade old, and the law moves so fast textbooks are outdated every 3 or 4 years and have to be replaced. So I don't know a damn thing of use, really, except the most basic principles.

The issue is that people post here in a vulnerable position and giving repeatedly wrong information just isn't fair. They may rely on it when making choices as to what to do. Look at that poor woman the other day who had no idea her DP might make a claim against her house with a 10k loan, for example - she needed decent legal help. I know you mean nothing but well, but please just refer them to Legal where Collaborate and Mumblechum and Spero/babybarrister/mumoverseas and so on can offer qualified and expert opinions. This stuff is not a matter of opinion, it's a matter of law and we don't have the qualifications to help that much.

"From reading the OP it sounds like the woman here cannot afford to, so therefore she wouldn't be able to stay in the marital home.

The law does nowhere state the man has to maintain mortgage payments, that would be utterly ridiculous.

But seriously I myself cannot understand any woman who would think the man still has to pay for a house he no longer lives in."

His kids live there - and actually there is a mutual duty to maintain a spouse on divorce, albeit tempered by other factors (such as duration of marriage - a woman who has kept house and raised a family can't be chucked on the scrapheap at 60, but a 2 year marriage and the courts are likely to be a lot less generous).

And bluntly, what you yourself think to be ridiculous, believe to be true, or understand to be fair is totally irrelevant to the law of the land. This is my point - you seem to think "I think this is fair" and then you post "this is the law". The law is not determined by your individual conscience and it might be an idea if you stopped advising people as if that were so. You just are not qualified to do so.

[FabbyChic]

Im a single mother!

Always have been, just always maintained myself!

[perfectstorm]

Mumble, sorry, you got there before me. I was just bothered to see legal advice that is totally wrong repeatedly given to vulnerable people. I know enough to know I know sod all, if that makes sense, which is why I always refer people over to legal.

And Fabby my post took too long - I wouldn't have piled in on you if I'd realised others had got there first. Sorry for the overkill aspect.