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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 09-Mar-11 08:34:50

Have I been misunderstood? I'm not accusing him of benefit fraud just trying to establish whether I can force him to be fair and go the 20% net salary route rather than his own lesser offer? I appreciate he can deduct appropriate expenses, pension contributions etc which I would expect him to do. Just don't know whether it's worth the bother of going the CSA route or just accept his deal? Again it's about trying to establish whether I have any control in this or whether I'm at his mercy.

Resolution Wed 09-Mar-11 10:37:23

Ignore the benefit fraud reference. I was responding to Ilovetiffany's post of 23 February - damn iphone got the pages mixed up.

The 3-5k will be about right for legal aid, but you would be responsible for paying it off, and the legal services comission would take a charge against your interest in the home on account of the fact that you had delayed a sale.

As for CSA - PM me about his line of work, but he's either a sole trader, in which case he gets assessed on the higher of his taxed income or his drawings, (the latter only after a variation application) or if he has his own ltd company, intially he'll be assessed on the basis of the salary and bonus he pays to himself, but then you'd apply for a variation and they'll then take into account what he pays to himself as dividend and also what he could draw from the company but chooses not to.

WADA Sun 13-Mar-11 12:58:56

I found this excellent article which sums up what Resolution has been talking about in terms of the remaining occupant being given credit for capital repayments

Thought it might be of use to someone at some point.

Resolution Sun 13-Mar-11 15:54:52

Familylawweek is a great website.

Xenia Sun 13-Mar-11 19:45:08

Do bear in mind that your income won't support the mortgage so he cannot come off it without rendering his children homeless and may well mean until your youngest is 18 he cannot get a mortgage and build up equity elsewhere. he is caught in a trap because he lived with someone who didn't earn as much as he did/gave up work. Next time he should ensure he doesn't end up with a housewife and then there won't be these problems. Women's lack of economic power never does them very much good nor is much use for their partners.

WADA Sun 13-Mar-11 21:25:58

Xenia - really?! I'm being extremely polite here but shame on you!

Xenia Mon 14-Mar-11 08:04:04

If you had a full time job you could remortgage adn buy out his half of the house and releaseh im from the mortgage and then he could buy a bome for the times when the children share their life with him which might be 50/50 and might even be more than that.

I could give the other advice which is never more in with anyone unless they marry you if you have a much lower income otherwise you don't get proper protection and if he won't marry you be wary of moving in.

expatinscotland Mon 14-Mar-11 08:41:47

Xenia's only saying what she always says.

Hopefully your youngest is under 7 otherwise it's Jobseeker's Allowance rather than Income Support.

And pretty soon, that age will drop to 5.

Hopefully you'll get to a place where you can move on from pinning everything round this house, because it's a bad idea in the current climate to assume benefits will keep you long-term sad. This government is making other plans.

Andywho Thu 17-Mar-11 01:35:34

Message withdrawn at poster's request.

Resolution Thu 17-Mar-11 06:39:12


WADA Tue 12-Feb-13 15:18:37

I just wanted to post an update to say that the paperwork at the Land Registry was finalised today and the house has been transferred into my name.

I just wanted to offer hope to anyone caught in a similar situation that you can succeed. It has taken time, money, effort, stress and perseverance but the kids and I now have the secure base I so wanted for them.

Life is great now. I'm just over a year away from qualifying as a counsellor and I am piecing my life together bit by bit.

I know the issue of Schedule 1 claims comes up quite frequently and I'm always happy to walk someone through the experience I had.

RedHelenB Tue 12-Feb-13 18:59:15

That's good!

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