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Family home, ex husband wants to sell

(28 Posts)
Joy5 Sun 15-Apr-12 16:11:58

Would anyone be able to give me some advice.

I separated from my husband 6 months ago, and remain in the family home with our 2 sons both of own are in FT education.

I received an email from my husband this weekend saying he is going to put the family home up for sale, and he wants me and our 2 sons to move into rented accommodation.

Can he legally do this?

We started mediation a few weeks ago, and he has given every impression there that he would carry on paying the mortgage and allow us to live in the family home whilst out sons are in FT education.

sneezecakesmum Sun 15-Apr-12 20:15:50

He cannot sell the family home from under you if you are both named on the mortgage and deeds, any sale needs agreement from both of you as things stand. It sounds like he is just trying it on and hoping you cave in. While you are divorcing he cant do anything like this anyway.

Your solicitor will advise you on all the implications at mediation. Although you say ex H I am assuming you are not actually divorced yet as you need to sort out all the financial stuff first, before the decree absolute is granted.

A mother with 2 school age children who has the main residency of the children usually stays in the family home if finances allow this. Don't worry but speak to your solicitor to get a fuller picture of all the issues in divorce.

Joy5 Sun 15-Apr-12 20:28:18

Thanks for replying, i only hope you're right. We're not divorced yet, supposed to be going through mediation first, so his email came out of the blue as I thought/assumed we would reach agreement there on all financial matters.

My solicitor doesn't attend mediation, its a mediator who conducts the meetings. I'm trying not to speak to a solicitor too much due to the cost, even though i'm on a very low income, i'm not eligible for legal aid. The cost of mediation is £200 a session and i'm having to pay that myself, so i know i need to get legal advice on this, but i can't afford both.

I thought i'd ask for advice on here, in case any body else has been through this too.

RedHelenB Sun 15-Apr-12 21:05:47

The expectation usually is for a house to be sold when the youngest turns 18. How long is the mortgage left for?

RandomMess Sun 15-Apr-12 21:08:01

how big is the house, how much equity in it etc these things can make a difference.

Your ex needs to be able to afford to house himself somewhere suitable for the dc to go and stay with him.

babybarrister Sun 15-Apr-12 21:14:58

You need to see a solicitor pronto - most reputable family mediators use models where the mediation takes place 'in the shadow of the law' ie it is normal and appropriate to have both.

Have a look at the resolution website for a list of family solicitors - your mediator should also be listed on there if they have trained with resolution.

Is the house in joint names? If so you can stop him selling. If not, your solicitor needs to register a charge asap to prevent a sale pending resolution of finances....

Please go and get advice - mediators cannot advise parties, merely state the law...

Joy5 Sun 15-Apr-12 21:24:54

The house is in joint names, theres not a lot of equity, eH is in a council rented flat he managed to get for himself before he moved out of family home.

Thanks for the replies so far.

RandomMess Sun 15-Apr-12 21:30:53

Somehow between you both you need to be able to afford the mortgage on the family home, if you can't then you may not be able to stay in it as selling may be the only option.

Def time to see a solicitor.

sneezecakesmum Mon 16-Apr-12 19:26:57

If you are able to pay the mortgage alone and the eH can afford to house himself and pay child maintenance you've got a good case for keeping the house for yourself and the DCs. Of course when the DCs reach 18 you would have to pay ExH a percentage of its value minus your contributions, and possibly have to sell to do this, so buying him out now and remortgaging in your sole name is the best option, but may be financially difficult.

angrywoman Tue 17-Apr-12 09:19:55

I have been in the exact same situation. I wasn't even married to him but I would have been able to stay in the home I think until kids aged 16. However my ex is now 50000 in debt and my solicitor thinks I need to sell ASAP because of risk of bancruptcy.

Collaborate Tue 17-Apr-12 09:45:28

angrywoman I assume your property is in joint names. If that is the case, your half interest in the property cannot be compromised by your ex's bankruptcy. You should be applying under the children act for the property to be put in trust until the youngest finishes secondary or tertiary education. A trust would give you protection against bankruptcy, but be careful if he's already insolvent.

Joy5 Tue 17-Apr-12 14:26:30

I'm unable to pay the mortgage, it is almost double my salary. I spoke to the buildng society yesterday about taking over the mortgage using maintenance i will be awarded, but its just not possible.

Is using the children act a feasibile option? I've not heard of using it before. My husband has threatened bankcruptcy also, but i'm not sure how big the threat is.

I would like to stay in the current family home at least until my youngest leaves school, but preferably until he finishes his A levels.

That would give me a breathing space to find a ft job, and maybe get my own mortgage or somehow manage to obtain a council or housing association house for us to live in. All three seem impossible right now, but i will try my hardest to make one of them happen, just as long as we can stay in the family home for the next few years.

Collaborate Tue 17-Apr-12 14:38:15

You shouldn't be basing life changing decisions on advice you receive on message boards. See a Resolution solicitor www.resolution.org.uk/join_us/.

Joy5 Tue 17-Apr-12 15:20:54

Thanks for you input collaborate, but it is life changing, expecially for my youngest son moved away from his school and friends, but unfortunately although i'm on a low income i'm not eligible for legal aid. I've paid for a mediation session in the last month at £200, and unfortunately my husband decided to email me his change of plans after this session. I won't be able to afford to see a solicitor for advice until i get paid again in a few weeks.
I posted hoping someone who has been in a similar situation, could share their experience with me.

prh47bridge Tue 17-Apr-12 15:47:38

Many solicitors will give you an initial half hour consultation free of charge.

Collaborate Tue 17-Apr-12 16:03:16

But beware the free half hour if you plan to go to multiple firms and get a snippet of advice from each as your case runs on. The purpose of the free half hour is that you get to know your lawyer and they you. If you have confidence in them and want to instruct them at cost, you can go ahead and do so. If you just don't click with them you haven't lost anything. The free half hour isn't a constitutional right. There's not much in the way of useful advice that anyone can get out of that half hour.

sneezecakesmum Tue 17-Apr-12 20:01:56

I think what the OP wants is just some pointers about her rights in general, such as
'at what age do courts generally accept childhood ends (18 if in FT education)'
'how does the childrens act work in relation to my situation?'
childrens act info
'How can I afford a solicitor if I am unable to get legal aid?' - Some solicitors will accept a direct debit throughout the case if there is an expectation of funds, eg equity through sale of house.
etc......

Obviously some information is duff but at least she gets an idea of the issues and knows where to research.

Its reasonable to see a solicitor with a list of questions and ask for clarification on issues you have at least researched and how they affect you. Talking to professionals can be very overwhelming and confusing. I would never dream of seeing a hospital consultant regarding an illness unless I had thoroughly researched my options....what is it they say? you only take in a quarter of the information given to you!

iheartdusty Tue 17-Apr-12 20:27:16

The Children Act won't really add anything to your situation, because you are married. Any financial ins and outs could just as well be looked at within the divorce finances. The Children Act really comes into its own for financial disputes between non-married parents.

Ray75 Wed 18-Apr-12 12:17:30

I have been through all this and although as said above you must get legal advice I can at least tell you that whilst the divorce is going through you can remain in the house. Once divorce happens you could remain in the house but would have to show you can offord to pay it (he would have to leave his equity in it until your youngest is of age) I am afraid today that the ex husband is not expected to pay the mortgage on the family home and pay to live else where himself he just pays maintenance to you for the children. You also dont get housing benefit assisatance with a mortgage as they wont pay Interest, hence why renting sometimes becomes a more viable option.
Sorry this is probably not what you want to here, the law now supports men being able to have a quality of life and provide a 2nd home for thier children and are not responsible for you financially only their children. In somecases people go for spousal maintenance but my Lawyer told me this is really hard to get and in fact in all his years of practice he has only seen it awarded twice, 1st case was because the child had disabilities and needed full time care so the Mother could not work and 2nd case was of a woman in her 50's whom had always been a housewife and was deemed unreasonalble for her to start a career at that point in life.

Toughasoldboots Wed 18-Apr-12 12:21:47

Could you investigate a Mesher order?

sneezecakesmum Wed 18-Apr-12 20:20:30

The childrens Act 1989 is for all parents

"The Children Act 1989 aims to encourage parents to agree about the child’s welfare in the event of separation or divorce by providing for the continuation of parental responsibility for divorced parents....."

How can it not add to the OPs situation as she has children? confused

babybarrister Wed 18-Apr-12 21:49:49

Sneeze cake - the lawyers on here have the professional knowledge and experience to know that in the context of an application under the matrimonial causes act (MCA) ie on divorce, that the children act is v unlikely to add anything as s25 of the MCA takes into account children's needs.

The op is getting good advice from some v experienced lawyers

sneezecakesmum Thu 19-Apr-12 20:11:23

OK. Just though Iheart was saying it is irrelevant unless you are unmarried.

babybarrister Thu 19-Apr-12 21:19:20

It is irrelevant unless unmarried!

iheartdusty Thu 19-Apr-12 22:23:39

yes - just to clarify -of course the Children Act 1989 applies to all parents, married or not (and is not limited to parents but also relevant to significant people in the child's life eg grandparents and more). It is the one key bit of law to do with contact, residence, change of name, etc etc.

But Schedule 1 of the Children Act 1989 - which is the part to do with financial provision for the benefit of a child - can't generally add anything to a dispute about financial arrangements on a divorce.
This is because all the factors that might justify payments for the benefit of a child would already be taken into account under the law relating to divorce; specifically the Matrimonial Causes Act 1973 section 25.

Just as babybarrister said.

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