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ExP issued proceedings to force sale of our home - where do I stand?

(15 Posts)
janedeflorette Sat 15-Oct-11 10:23:58

This may be long so I apologise in advance. Basically as the thread title says, ExP (or rather his solicitors) have issued Part 8 proceedings against me seeking a declaration of his beneficial interest, and an order for sale of our house. I received the docs from the court yesterday, along with a hearing date for early in the New Year.

ExP has submitted a detailed 30 odd page statement (which is mostly lies) in support. He has said that our relationship broke down as a result of an affair (it didn't, he was emotionally and physically abusive to me, but I don't expect he wants the court to know that!), that he has done £100k worth of work to our house, that he needs a sale so that he can buy another property etc etc.

The bottom line, and leaving aside all the lies he has told is that I don't want to sell the house. We have a child together who is 10, I have an older child (not with Exp) who also lives with me. We bought the house 10 years ago, both children don't remember living anywhere else, and attend schools nearby. If the house is sold I will not be able to afford another house locally, and will have to move to a cheaper area. This will cause problems for both children in terms of schools, I will need to make alternative childcare arrangements for younger child etc. Frankly they have been through a lot and I don't want to put them through it.

I am prepared to be reasonable and to pay ExP a fair amount for his share of the house. I have said this all along. I should add ExP pays no maintenance and has not done so since we split 3 years ago. He currently lives rent free with his family.

ExP first instructed solicitors 18 months ago. They wrote re Ex's intention to sell house. I responded to say I didn't want to sell, and would offer Ex a fair amount. I also referred them to the fact that I had previously offered Ex an amount, which he agreed, but then changed his mind. Solicitors never responded.

Another 6 or so months later, I heard from another firm, along same lines. I sent them a copy of my response to previous sols. Again no reply.

Earlier this year, another letter from Firm no 3. Again re selling house. Again I sent copies of previous letters to other firms. No reply at all, and then they issue proceedings!

I suppose what I want to know is:
Is it reasonable of them to just issue without even attempting to reply to my letter or the offer I've made to ExP?
Are they likely to obtain an order for sale?
What should I be doing to protect myself and my children? (I don't have a solicitor as yet, I'd rather try and do as much as I can myself to keep costs to a minimum)
Will the hearing in the new year be a final hearing, or just the first round?

hoping someone can advise....

I

DollyTwat Sat 15-Oct-11 10:28:52

I'm not a solicitor, but when I sorted the house with my ex the court gave their opinion of what he should have in way if a full and final settlement. I could have chosen to make him wait til the youngest was 18 or out of education. I didn't want him to benefit from any improvements I made though

You need to see a solicitor. I don't think you will be made to sell if you have children under 18 though.

babybarrister Sat 15-Oct-11 10:32:09

It is complicated as you will need to make an application under schedule 1 children act as something of a defence. You need good advice - have a look at the resolution website for a list a
Of specialist practitioners.

Collaborate Sun 16-Oct-11 00:32:43

You don't say whether you own the property in joint names or whether it's in your sole name. What babybarrister says re the children act, but the deeds are the starting off point (and usually the end point too) for how the eventual proceeds of sale will be split. The children Act (and TOLATA - what he's gone to court under) can only be used to delay eventual sale provided he has an interest in it.

Collaborate Sun 16-Oct-11 00:33:12

BTW dealing the sale isn't a given. You need proper advice.

janedeflorette Sun 16-Oct-11 20:50:50

Property is owned in joint names as tenants in common. I owned a previous property (bought with an inheritance) and that funded the purchase. Ex and I agreed that should we split, I would get that money back first, after mortgage taken off and then we'd split the rest.

I don't want to delay the sale as such - I want to pay him off now. Collaborate can I ask why you say delaying the sale isn't a given?

I can't understand why his solicitors would take this to court without even responding to my offer? I have some legal experience- not in family law admittedly - but my understanding was court is a last resort, and you're expected to try and negotiate?

Am in difficulties getting legal advice. I won't get legal aid. Ex has spent £10k on his solicitor(s) so far. I just don't have that to spend.

cestlavielife Sun 16-Oct-11 21:47:20

Can you afford to buy him out ?

Reasons for split are irrelevant .

How much equity is there?

You should get Market valuations and also look up what properties he and you could get on proceeds to set your case.

janedeflorette Sun 16-Oct-11 23:23:40

cestlavie yes I believe I can buy him out based on the figures.

I have already had the house valued last year when this first kicked off (and he was on solicitor no 1). Worst case I can pay him 50% of the net value (sale price, net of mortgage and my deposit). I can't see how he could expect any more than that.

However, my latest offer to him (which the solicitors entirely ignored and instead issued proceedings) was a lesser amount than the above to take account of the lack of maintenance to date - and because I know he will never pay me a penny in future, I would rather deduct what he should pay from what he's due from the house.

I would only be able to get a house half the size if I sold (my house is v cheap for the area due to it's condition). Given what I've been through to get here, I don't want to sell now. I don't see why I should have to if I'm offering Ex a fair amount for his share.

I know Ex, he is petty and spiteful. He wants me to sell just because he can't live here. I would sincerely hope that would not be a good enough reason!

Collaborate Mon 17-Oct-11 09:19:10

The court will only delay a sale if that is the only way of housing the child/ren adequately. But if you can afford to buy him out (and in this regard you should look at the original declaration of trust made when you bought the property and stick to that) the court will order you to do so. Just make sure that you have a joint valuation and work off that to determine how much you need to pay him.

cestlavielife Mon 17-Oct-11 12:12:11

the sale of the property - to you effectively and the price you pay to him is based purely on TOLATA and if court orders a sale it can effectively be to you (ie you buying him out) so not sure what he gains from doing it this way. if you offered to buy him out anyway and the price is resonable why go to court to order a sale? but hey ho.

however, let him go ahead with doing it this way - all it means is the sale will be to you. he cannot stop you "buiying" the house yourself and paying him his share of equity

on maintanence/lump sum for DC - this comes under schedule 1 childrens act - so out of his share of equity (which effectively you will pay him as the "buyer" ) you can make a claim under childrens act schedule 1. i dont know how successful that will be - one way might be for him to keep a charge on the property til chidlren reach end of educaiton .

i've just gone thru combined TOLATA/childrens act schedule 1 - no "maintenance" extracted - but most of exP share of equity is going to wards house for DC to reside in (with me) - but reverting to him when chidlren reach end of full time education ie i would have to buy him out then.

there didnt seem to be much chance of getting a straight lump sum in lieu of maintenance to be honest...

it's complicated.

msot combined TOLATA/schedule 1 childrens act referred to in legal articles relate to big bucks - millions of ££££ in property etc . mine certainly wasnt! but there are relevant precedents.

hopefully at the first hearing you can present figures etc to show how you prepared to buy him out and can do so mortgage wise; get an ok from your bank/mortgage company to t ake with you. get valuations, any and all figures etc you can get do so now. eg agreement in principle from bank.

but the TOLATA equity bit ie how much you pay to buy the porperty off him (the bit he still owns) is separate from your claim on his share for the DC. you coudl make it a combined TOLATA/scedule 1 case to deal with this.

my exP has no income and I will get nothing - except this equity towards a house for me and dc to live in.

you need some good legal advice eg barrister on how to repsent you case.

but i dont think - from my experience - you can just "take off" what you think he owes in maintenance from sale price - it doesnt work that way.

tho you could try and get a lump sum out of "his" share under schedule one thereby effectively reducing amount you pay to him to buy him out - but then again this is subject to market valuations etc. and you might need to register that you buying him out for xxx price - then get it paid back - but as his charge on your property til dc older - unless of course he agrees to "pay" you maintenance lump sum this way .

gather together as much paperwork as you can figures etc then go thru them with someone ie get some advice from a barrister.

cestlavielife Mon 17-Oct-11 12:16:04

also apart form anything set out in alnd registry as far as i could see any imrpovements etc paid for while still a couple were irrelevant - only anything he might have paid for after you split - but there would need to be receipts etc.

unless of course he perosnally paid for a £100k extension or something and can prove it was all his money. in which case - this shoudl also ahve beenr ecorded at land registry?

sneezecakesmum Mon 17-Oct-11 19:59:46

From the ongoing experience of a family member I would advise some kind of legal advice certainly.

You must keep all records of your attempts to negotiate fairly otherwise he may ask for some of his costs from you for non co operation.

Have you got anything in writing with him re your intentions to split any net profit 50/50? It doesnt matter if not, provided you can provide evidence regarding the next paragraph.

Have you got a clear paper trail when your previous property was sold, the amount you personally put down as the deposit on your current house, bank statements etc? This is vital for you to have this amount credited to you on sale or transfer of the current property.

The first court hearing in our experience is usually very quick (15 mins) for the judge to read all your submitted statements and encourage mediation (much cheaper than a final court hearing). Mediation is an option for you as you are willing to negotiate so grab it with both hands! If mediation is rejected by the Ex and the judge goes along with it, it goes to a final court hearing usually a full day is set aside for this. (My family member has a barrister representing him and we have a date set for dec)

Why have you not gone to the CSA for maintenance? From what we have been told (because they were not married) the court case will consider ONLY the sale of the house and how it relates to the child who is still in the property. Not to maintenance, other personal propertiy or businesses. The CSA will not backdate by the way, only chase payments from the time of the application.

I would be very careful about deducting back maintenance from the price you are offering to buy him out as it may back him into a corner and force a court hearing.

Having children in the family home is a good negotiating tool but it isnt a guarantee that you will stay in the home. If you can afford a buy out mediation will help you agree suitable terms.

The resolution website tell you how mediation works too.

janedeflorette Mon 17-Oct-11 22:05:36

thanks for the help, really very much appreciated.

am fairly sure I will be able to buy him out, even if he gets a fair bit more than I've offered him. Will be making appt with my mortgage co asap to discuss and find out the max they will lend me in my own name to see how much I have to play with - I have savings as well which can be put towards it.

i wasnt sure about taking off the maintenance, it was kind of just a carrot to dangle before all this court stuff kicked off, hope was that if I flagged up the fact I hadnt forgotten about maintenance, it might assist our negotiations. In truth I dont really want his money. I also know full well if any order is made for maintenance he will just stop work, cos that's the sort of stand up guy he is hmm

his claim for the building work is a nonsense. about £60k was paid from joint account. half that was proceeds from my first house, balance was an increase in our mortgage. he has done a lot of work, but maybe £10k at best in real terms. Plus none of it is finished. Oh, and against that £10k he spent over £15k in total on electrical goods (which he took with him - top end 70' tv etc), other furniture (which he also took) and a £5k holiday for him and the DC, all paid from the joint account.

I do have evidence re monies from my first house, and all my attempts to negotiate with his solicitors (various letters i have sent which they have not responded to, other than to say they were seeking Ex's instructions). Solicitor no 2 wrote to me re mediation, I responded to agree in principle (but said my safety would have to be assured, Ex has a history of violence to me and others - not our DC). Those solicitors then stopped acting for him, so the mediation proposal went nowhere.

cestlavielife Tue 18-Oct-11 14:53:35

dig out any relevant bank statements, invoices, deeds, land regsitry form TR1, invoices for work done etc.
bank can provide statements for full year(s) - might charge you something but might be easier than printing off from online banking.

anything he has already said or might say re: monies he put in - find the paperwork now before the first hearing.

it is only about finance who put in what to house when it comes to tolata. and what you did jointly as a couple versus what you can prove was individual(tho you can mention eg dv if relevant eg as reason to perhaps stay in locality reason to keep house as is secure or whatever)

the maintenance angle is separate.

deeplydepressed Tue 18-Oct-11 18:32:02

As cestlavie says it is all about who owns what, paid for what and can PROVE it if you are not married. Its far more simple than a divorce! So paperwork +++ is needed.

If it goes to court or mediation, the childrens act, section 1 will need to be taken into account re housing the DCs. This should count in your favour as they are residing with you and attending local schools. Any court would take this into account and if you are able to buy the ex out they would be happy with this. That way is fair and neither of you are disadvantaged.

I don't know what you could do about mediation (far cheaper all round) as no one can guarantee anyones safety as such, and it is usually the victim who is refusing mediation because of previous violence. He may ask you for some of his costs if you refuse, but if its because of DM he may not get them. You need to get a solicitor to ask about this aspect. You will need a solicitor in any case, but I understand you want to know other peoples experiences to have an idea where you will end up!

Have the house valued and speak to your mortgage provider. If you can raise the amount (taking into account your provable greater interest) you should be home and dry smile

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