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Housing rights advice please.

(10 Posts)
ilovemilton Mon 29-Oct-12 21:11:59

I left my husband a month ago, taking my six year old DD and three year old DS with me, to stay at a friends house, to escape domestic violence.
The family home is in joint names, although I have always paid the mortgage and the majority of the household bills from my own account. We have approx £20k equity.
DH is saying that he wants to keep the house, have it transferred to his name, although I am to continue paying the mortgage, as he can't afford it. I am the main earner, he couldn't afford a mortgage repayment, let alone bills or food. He says its not fair if he loses everything.
I would like to return to the family home, as the kids are really missing home, it is near the school (currently we are driving 20 mins to school), friends and childcare. If I tell him this, he tells me I have to go home then. DC are telling me how scared they are of him, so that won't happen.
I have an appt with a solicitor, but am wondering what to expect, and what is reasonable to ask for. Will a court force us to sell the house or am I able to get it transferred to my name without his consent? Also, how long is this likely to take? I don't want to stop mortgage repayments because of the equity / credit rating / losing it etc. But I can't afford to do anything other than continue to sleep on my friends floor while this is sorted out.
I just feel the kids are suffering more than they need to, and I want to go home!

olgaga Mon 29-Oct-12 21:30:59

Don't stop paying the mortgage if you can afford it. I'm pleased you're seeing a solicitor. You might find this useful:

Relationship Breakdown and Divorce – Advice and Links

It is useful if you can get to grips with the language of family law and procedure, and get an understanding of your rights, BEFORE you see a solicitor. If you are well prepared you will save time and money.

Children

If there are children involved, their welfare, needs and interests are paramount. Parents have responsibilities, not rights, in this regard. Shared residence means both parties having an equal interest in the upbringing of the children. It does not mean equal (50/50) parenting time - children are not possessions to be “fairly” divided between separating parents.

A divorce will not be granted where children are involved unless there are agreed arrangements for finance, and care of the children (“Statement of Arrangements for Children”). It is obviously quicker and cheaper if this can be agreed but if there is no agreement, the Court will make an Order - “Residence and Contact” regarding children, “Financial Order” or “Ancillary Relief” in the case of Finance. Information and links to these can be found in the Directgov link below. Residence and Contact Orders are likely to be renamed Child Arrangements Orders in future.

Always see a specialist family lawyer!

Get word of mouth recommendations for family lawyers in your area if possible. If you have children at school, ask mums you are friendly with if they know of anyone who can make a recommendation in your area. These days there are few people who don’t know of anyone who has been through a divorce or separation – there’s a lot of knowledge and support out there!

Many family lawyers will offer the first half hour consultation free. Make use of this. Don’t just stick with the first lawyer you find – shop around and find someone you feel comfortable with. You may be in for a long haul, so it helps if you can find a solicitor you’re happy with.

If you can’t find any local recommendations, always see a solicitor who specialises in Family Law.

If you take legal action to protect yourself or your family from domestic violence, you may qualify for legal aid without having to meet the normal financial conditions. The income of an abusive partner will not be taken into account when deciding whether you qualify for legal aid.

You can also find out about Legal Aid and get advice on the Community Legal Advice Helpline on 08345 345 4 345
www.direct.gov.uk/en/Dl1/Directories/UsefulContactsByCategory/Governmentcitizensandrightscontacts/DG_195356

Or search in your area for Community Legal Advisors:
legaladviserfinder.justice.gov.uk/AdviserSearch.do

Co-operative Legal Services offer DIY/Self-Help Divorce packages, as well as a Managed Divorce service. Their fee structure is more transparent and they have a telephone advice line as well as offering really good advice on their website:
www.co-operative.coop/legalservices/family-and-relationships/

You can read advice and search by area for a family lawyer here:
www.resolution.org.uk/

You will also read good advice and find a family lawyer here:
www.divorceaid.co.uk/

Some family law solicitors publish online feedback from clients – Google solicitors to see if you can find any recommendations or feedback.

Mediation

You will be encouraged to attend mediation. This can help by encouraging discussion about arrangements for children and finance in a structured way in a neutral setting. However, it only works if both parties are willing to reach agreement.

If there has been violence or emotional abuse, discuss this with your solicitor first. Always get legal advice, or at the very least make sure you are aware of your legal rights, before you begin mediation. This is important because while a Mediator should have knowledge of family law, and will often explain family law, they are not there to give tailored legal advice to either party - so it’s important to have that first.

Married or Living Together?

This is a key question, because if you are married, generally speaking you have greater protection when a relationship breaks down.

Legal Issues around marriage/cohabitation and relationship breakdown are explained here:
www.adviceguide.org.uk/england/relationships_e/relationships_living_together_marriage_and_civil_partnership_e/living_together_and_marriage_legal_differences.htm#Ending_a_relationship

www.advicenow.org.uk/living-together/

DirectGov advice on divorce, separation and relationship breakdown:
www.direct.gov.uk/en/Governmentcitizensandrights/Divorceseparationandrelationshipbreakdown/index.htm

Legal Rights and issues around contact are further explained here:
www.rightsofwomen.org.uk/legal.php#children_relationship_breakdown
www.maypole.org.uk/

I found these guides from law firms quite informative and easy to read – there are others of course:

www.family-lawfirm.co.uk/uploaded/documents/Surviving-Family-Conflict-and-Divorce---2nd-edition.pdf

www.terry.co.uk/hindex.html

Finance

Before you see a family law solicitor, get hold of every single piece of financial information you have access to, and take copies or make notes. Wage slips, P60s, tax returns, employment contracts, pensions and other statements – savings, current account and mortgages, deeds, rental leases, utility bills, council tax bills, credit statements. Are there joint assets such as a home, pensions, savings, shares?

If you have no access to financial information, or you are aware that assets are being hidden from you, then obviously you will not be able to reach agreement on finances. If there are children, as you cannot divorce without adequate arrangements being agreed on finance and children, you will have to apply for a financial order anyway. If there are no children, and you are unable to agree on finances, you will also have to apply for a financial order (follow the Direct.gov links below). This seeks financial information from both parties going back 12 months. So it is in your interests to act quickly once you have made the decision to divorce.

If you are married, the main considerations of the Family Courts where parties are unable to agree a settlement are (in no particular order of priority):

1.The welfare of any minor children from the marriage.
2.The value of jointly and individually owned property and other assets and the financial needs, obligation and responsibilities of each party.
3.Any debts or liabilities of the parties.
4.Pension arrangements for each of the parties, including future pension values and any value to each of the parties of any benefit they may lose as a result of the divorce.
5.The earnings and earning potential of each of the parties.
6.Standard of living enjoyed during the marriage.
7.The age of the parties and duration of the marriage.
8.Any physical or mental disability of either of the parties.
9.Contributions that each party may have made to the marriage, either financially or by looking after the house and/or caring for the family.

CSA maintenance calculator:
www.csacalculator.dsdni.gov.uk/calc.asp

Handy tax credits calculator:
www.hmrc.gov.uk/taxcredits/payments-entitlement/entitlement/question-how-much.htm#7

Handy 5 Minute benefit check, tax and housing benefit calculators:
www.moneysavingexpert.com/family/

CAB Benefits Check:
www.citizensadvice.co.uk/getadvice/benefit-calculator/A2B-Benefit-Calculator/#730

Parenting issues:
www.familylives.org.uk
www.theparentconnection.org.uk

Other Support for Women – Children, Housing, Domestic Violence
www.womensaid.org.uk/ and refuge.org.uk/ - Helpline 0808 2000 247
www.ncdv.org.uk/ - Helpline 0844 8044 999
www.gingerbread.org.uk/ - Helpline 0808 802 0925
Housing www.england.shelter.org.uk/get_advice/families_and_relationships/relationship_breakdown
(Note that there is usually an appropriate link on these websites for England, Wales and Scotland where the law, advice and contact information may differ.

ilovemilton Mon 29-Oct-12 21:39:28

Wow! Thank you. Lots of stuff to read. Given that I am the main earner, will I be expected to support him in any way financially?

olgaga Mon 29-Oct-12 21:53:14

Not necessarily, it really does depend on the circumstances. PM me if you like.

ilovemilton Mon 29-Oct-12 22:09:32

Don't appear to be able to do that on my phone...he works part time in a shop. I just want to be able to take the kids home and be safe from him.

olgaga Mon 29-Oct-12 22:53:56

OK, I will see if I can PM you...!

olgaga Mon 29-Oct-12 23:02:50

If you don't get my PM through your email I am basically advising you to speak to the police non-emergency number 101 and register any incidents of domestic violence and seek their help.

You might also contact Women's Aid - link and helpline above.

ilovemilton Mon 29-Oct-12 23:16:44

Have contacted all of those organisations and they are saying as the last incident was over a week ago, they can't do anything.

RedHelenB Tue 30-Oct-12 09:18:58

See a solicitor & they will get you back into your own home, even if it is only temporary until the divorce is settled.

Collaborate Tue 30-Oct-12 09:45:09

You can apply for an occupation order to be allowed back into the house (if you are being excluded) and also to exclude your H from the house. The former is a given - the latter depends on the nature of the allegations you make and the findings of fact made by the judge.

Speak to your solicitor about both.

Just because you've left it a while doesn't mean to say that you can't apply for an order, although the fact that you've left it as you have means that your solicitor won't be able to exercise devolved powers to grant you an emergency legal aid certificate to get it in to court promptly.

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