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Can I get an order to remove partner from family home

(87 Posts)
WADA Mon 21-Feb-11 17:53:07

My partner and I separated last year. He is steadfastly refusing to move out of the family home because he doesn't want to lose out on any equity the house may gain up until my youngest is 18. My argument is that I will be paying the repayments on the mortgage and don't think he should be entitled to 50% of any equity. He earns upwards of £300 per day whilst I will be trying to pay for the mortgage on benefits initially and then on a part time wage. It seems wrong that he should be able to claim 50% just to have his name on the mortgage. Unfortunately I can't remortgage as I don't currently work.

I want to stay in the home with the children because I think it's in their best interests that they have the security of their home, school and local friends. My youngest is almost 4 and my plan of action is to claim IS until he is five and following that JSA for 2 years whilst I work 15 hours a week. This should entitle me to receive SMI for 3 years. I am studying at the moment and should qualify in my chosen occupation in 3 years after which I'll be looking for work part time work around school hours.

Is there any way I can force XP to move out of property whilst delaying the sale of the property until youngest is 18 (I think he should be entitled to a percentage of the equity for keeping his name on the mortgage just not 50%. I've also said he should keep half of the equity to the date he moves out).

My argument is that I would have little chance of renting in the area I currently live in because of the reluctance to rent to people on benefits. I also have two animals which would need to come with us (kids and I would be devastated if anything happened to them). My Ex on the other half has so much money anyone would rent to him (he left his bank statement out at currently has 3K) sitting in his current account (lucky bugger!)

He seems intent on trying to punish me for being a SAHM both when we were in the relationship and now. He just refuses to see past his own needs to those of his children.

Can I do anything - I've heard of TOLATA and the Children's Act but I don't know if they apply in this case.

It doesn't seem right that he can get to refuse to leave. Do I have any rights at all without disadvantaging my children?

Thank you

WADA Wed 23-Feb-11 10:48:29


I like your orthopaedic comment - very funny!

GypsyMoth Wed 23-Feb-11 10:50:14

If you have a wage earner living with you, it's benefit fraud. That's all

GypsyMoth Wed 23-Feb-11 10:52:24

And you don't get the mortgage paid for you whilst on benefits either. Just the interest.

WADA Wed 23-Feb-11 11:27:11


If you're going to post anything can you at least read the thread properly before making pointless comments. I've never talked about claiming whilst a wage earner lives with me!!!! Of course that would be benefit fraud.

As for the issue of the mortgage - read the thread only a couple of comments back! Even Resolution stood corrected on the point of what the government does if one's interest rate is lower than 3.63!

I appreciate people taking the time to respond and I've received a lot of useful feedback but you are throwing stuff into the mix that is very unhelpful and what is already stressful time.

chickchickchicken Wed 23-Feb-11 12:02:18

OP, i feel for you and completely understand why you want to stay in the family home until the kids are grown up but at the same time protecting your financial future as much as possible.

i am not a solicitor so cannot give legal advice but have been through similiar. i cannot go into specifics here but one of the things which i was completely unaware of which may help with one part of your query is that the names on the mortgage does not have to be the same as on the deeds (sorry if this is basic info but i didnt know it)

so its possible to keep joints names on mortgage, get help to pay part of it until you can work (subject to rules you already know about re fraud) but have the deeds transferred into your name only.

i had to have a solicitor to help me. i had to give up rights to his pension etc in order for him to agree but at least i kept the family home. not a luxury home so couldnt downsize and was very important for ds for us to stay here.

i hope you dont feel guilty for relying on govt to help you as a temporary measure. you are doing what you think is best for kids and will return to work as soon as you can. i admire you for being able to think it all through so logically during what must be a difficult time for you.

on another note, is it worth you contacting womens aid? could you be experiencing emotional abuse? domestic abuse covers financial, sexual, emotional abuse as well as violence. i am not saying you are and maybe what you describe is 'general' (sorry builder here and not at my best mentally! cant think of a more appropriate word) relationship breakdown

womens aid can help support you emotionally but also offer specific housing/legal advice

cestlavielife Wed 23-Feb-11 14:45:32

so its possible to keep joints names on mortgage, get help to pay part of it until you can work (subject to rules you already know about re fraud) but have the deeds transferred into your name only.

that is true -but the second person remains liable for the mortgage. maybe as a guarantor. so if one doesnt pay - they can chase the other. and i think i may be wrong that second person as joint mortgageee (not as gaurantor) may have to have nominal 1 per cent of rights to property? not sure may have mis read.

WADA Wed 23-Feb-11 17:19:07


Thank you for your kind posting and thanks for the helpful information. I'm glad someone can see the sense in what I'm trying to do. Ironically it will also be cheaper for the government to help with SMI than if I rented and claimed HB so it makes sense all round really! Would you mind if I PM'd you about more details?


I'll see what my Solicitor says about rights etc. I've already offered my ex 10% of any future equity but he refused and subsequently my Solicitor advised it was too generous an offer and that a straight 50/50 of the current equity was appropriate.

Really I just want everything done and dusted so that we can all move on and start rebuilding our lives.

LaurieFairyCake Wed 23-Feb-11 17:27:56

How is the mortgage currently being paid?

Is he supporting the children or you at all?

WADA Wed 23-Feb-11 17:55:08


I'm happy to answer your questions if they are relevant but at this stage in the conversation could I ask you to expand on why you're asking them please.


LaurieFairyCake Wed 23-Feb-11 18:35:35

Because I think you should contact Womens Aid as I wondered if you were being financially abused.

What you have said so far makes me worry that he would pretend to move out, you would then claim benefits and then he would say he hasn't moved out to get you into trouble - a bit like IloveTiffany was warning you about.

It may be really difficult to get him to move out.

chickchickchicken Wed 23-Feb-11 19:03:26

WADA - yes, it ok to pm me

WADA Wed 23-Feb-11 19:08:05

Thanks for clarifying LaurieFairyCake. I must admit I tried to call Women's Aid yesterday but they were busy and I kind of lost my bottle. I've shown yesterday's emails to my sister and a couple of close friends and they are horrified by what they contain. The emails are littered with threats to quit work so that I don't receive a penny, refusal to go to mediation, comments about my parenting, refusal to find an alternative place to live until it's convenient for him and on it goes. He's also made comments about my weight, that I've made no contribution to the house (he once said he would prefer that I work full time and put the children in full time care so that at least he wasn't the only one doing earning money). Unfortunately he doesn't see raising the kids as proper work. His comments don't threaten to hurt me physically but they do make me feel powerless to stop saying nasty things, intimidated and fearful about him fulfilling his obligations towards the children in a consistent manner.

Out of curiosity how could he pretend to move out? The benefits office told me to contact them about a week before he moves out to get the ball rolling with what is currently a dormant claim so surely they would know I wasn't be fraudulent?

In any event if I'm investigating trying to obtain an Order I would hope that he would have to be honest with a Court about moving out?


WADA Wed 23-Feb-11 19:10:50

Sorry LaurieFairyCake I didn't actually answer your earlier questions!!

He is currently paying the mortgage in full and all the bills. Basically financially he is continuing to do almost what he did before we split up.


WADA Thu 24-Feb-11 06:46:48


I was reading through some of your threads last night (boy you've had some trying (and complicated) times!). How is everything?

I noticed in one or a couple of postings that you or someone else in the thread mentioned that a person remaining in a property would get credit for any capital repayments they paid on a mortgage with half of the interest payments being classed as nominal rent to the person not living at the property. Have I understood this correctly?

Would this mean exp would be entitled to half of the equity to date he moves out and thereafter 50% of any future equity less capital payments I have made? If so then surely this would be acceptable to him as it's pretty fair to both parties - no?

I wake up thinking about ways to try and make this work without resorting to Court!

Youllskimmer Thu 24-Feb-11 07:14:16

I think it is very dicey to base anything long term on what benefits are now and what mortgage interest rates are now.

The first one is sure to go down and the second is sure to go up.

What's the plan once benefits start getting cut and interest rates rise above the government threshold? And I can't see the Tories keeping the mortgage relief payments for ever.

WADA Thu 24-Feb-11 07:40:24


Who said anything about long term?

I've explained my plan in some of the earlier postings - please feel free to look.

Resolution Thu 24-Feb-11 09:48:51

You're correct about getting dredit for capital repayments and occupation rent. The equity he has of 50% will be valued as at the date that he realises his interest in the property.

WADA Thu 24-Feb-11 10:57:23

And by release Resolution to you mean in terms of name on the Deeds rather removal of his name from the mortgage?

cestlavielife Thu 24-Feb-11 11:08:50

would be release from deeds/title/land registry presumably?
as that is when he no longer has an interest/part owns the propoerty

cestlavielife Thu 24-Feb-11 11:11:50

always in percentage terms?
so if agreed 50 per cent now - which might be for sake of argument 20,000 - in five or ten years this could be 50,000 or 10,000 -depending if prices go up or down?

cestlavielife Thu 24-Feb-11 11:12:26

if prices go up you both gain - if they go down you "owe" him less in actual figures?

WADA Thu 24-Feb-11 11:15:54

Can I just double check I've got my brain around this now!

If a TOLATA and Childrens Act Order were granted would that mean:-

I could remain in the property with the kids until youngest was 18 with my paying the mortgage?

He would remain on the mortgage and deeds until either I bought him out when the kids are 18 or the house is sold but he would limited to receiving 50% equity less the value of capital payments I make?

If his name remains on the mortgage and deeds does he retain rights to enter the property (I'd feel quite insecure if he could enter at his will).

cestlavielife Thu 24-Feb-11 11:35:25

sounds right by my thinking.
takes a while - we had first hearing december (but exP was mentally incapable) second is 6 april (gp now saying exP is "stable"), he has put his views forward (that i should move next door to him iunto teh oint owned but currently rented out property); i have put my views (not moving next door sale is only option - but still waiting to see if he comes up with evidence he can retain one property in his name only by getting SMI - but as you have said, mortgage cant be in his name only...) if no agreement two days set for june.

he would retain right to enter - as property still part belongs to him - but it would be expected that he should give 24 hour notice. you could get a written agreement with him to this effect.

Resolution Thu 24-Feb-11 11:44:22


You will have the sole right to reside there - that's the Children Act part of the order.

Resolution Thu 24-Feb-11 11:45:14

And by 'realise' I mean when he gets paid for his 50%.

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