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Transfer of property under Schedule 1 of the Childrens Act

(17 Posts)
jules3004 Wed 19-Dec-12 16:36:32

I have recently received a court claim from my ex trying to force the sale of our house where I live with our 2 sons aged 9 & 16. He has not lived with us for 2 years.

I am aware that I need to to issue a counter claim under Schedule 1 of The Children Act 1989 for settlement of property and/or the transfer of the property. I would like to know what form I need to complete and also if I can apply for either periodical payments/secured periodical payments as he is paying minimal child support through the csa.

Any help would be much appreciated.

I have sought legal advice but my funds are limited and I am not eligible for legal aid.

caramelwaffle Wed 19-Dec-12 16:38:31

Bumping for you

Collaborate Wed 19-Dec-12 16:50:57

Need a bump after 2 minutes?

You don't actually need to issue an application under Schedule 1, as the court has power under TOLATA to defer a sale because there are chiuldren in need of a home. However most solicitors (me included) would issue such an application as belt and braces.

Fill in Form A1 and send it to court with a cheque for £200. Remember to put in the covering letter that there is an existing case and you want it putting in for directions at the same next hearing, otherwise you'll be saddled with standard directions.

jules3004 Thu 20-Dec-12 11:06:23

Thank you for your response. I've downloaded form A1 and I'm guessing I should tick the lump sum order but I'm not sure of the difference between a settlement or transfer of property. My aim is to go for all or the majority of the house since he now owns another 2 houses. We were not married and are joint tenants.

Collaborate Thu 20-Dec-12 11:25:00

If in doubt, tick the box.

babybarrister Thu 20-Dec-12 15:44:41

Message withdrawn at poster's request.

jules3004 Sat 29-Dec-12 10:54:03

I have sought legal advice but can't afford anymore so have no choice but to do it myself.

Do i have to specify what i want on the lump sum order or does the court decide?

Help....I really have no idea how to go about this!

Collaborate Sat 29-Dec-12 11:16:38

You're not actually asking for a lump sum order though. You just want a settlement of property. If you feel you want the court to look at whether you own more than 50% due to a resulting or constructive trust then get a solicitor or barrister to advise you and draft the paperwork.
The court can't alter existing ownership shares. It can only declare what they are. The best you can get is an order delaying him realising his interest, and that depends on you demonstrating that the child/ren can't be rehoused anywhere appropriate without such an order. There's no law that says people should never expect to have to sell a jointly owned property on separation.

jules3004 Mon 31-Dec-12 14:53:38

I don't have the money to get a solicitor or barrister to advise and draft the paperwork which is why i'm trying to do it myself and seeking advice on here.

I'm looking for a lump sum order as well as a settlement of property as he is paying minimal child support based on the fact he told the CSA he earns £12k per year yet he's the sole director of a limited company that is thriving.

Form A1 has several options to tick including settlement or transfer of property, lump sum order, periodical payment order etc. I will tick them all if necessary but it doesn't ask for any additional information. What information do I have to provide? I read somewhere I can ask for a lump sum to pay for things such as beds for the children, decoration of their rooms, central heating etc.

Thank you.

Collaborate Mon 31-Dec-12 16:14:29

You supply that in a form E that you will be directed to file at a later date. There's a special form E for children act applications.
Don't tick the box for maintenance pending suit.

jules3004 Thu 03-Jan-13 14:01:33

I've just been made aware of a McKenzie's friend! I've sought advice through countless, the CAB, solicitors, helplines & nobody suggested a McKenzie friend. I've read up on this and it sounds like it can give me the held I need - i can't believe nobody has told me about it despite my pleas for help!

TheseJeansHaveShrunk Sat 05-Jan-13 05:07:42

Anyone can call themself a McKenzie friend. They are not qualified lawyers and you'd be insane to entrust the future of your children's home (and yours!) to one.

jules3004 Mon 21-Jan-13 11:45:47

Form A1 was returned by the court saying it was the wrong form to use as i had not been divorced through the courts! (I was never married!)

I've now been advised to use forms C1, C10 and C10a but can only find C1 (which doesn't mention lump sum orders) on HMCourts website! Are these the correct forms to use and where do i get them if not from the courts website?!!

Thanks for any advice!

Collaborate Mon 21-Jan-13 13:10:02

Use form A1

That is why you really need at least some advice from a trained lawyer. Not even the court staff get it right.

Refer the court staff to FPR 2010, r9.12 and tell them to issue your application properly in accordance with the current rules, not rules that were ditched 2 years ago.

Bill's in the post. wink

fireblade900 Wed 03-Jul-13 20:07:25

hi i wondered if anyone could offer me any advice. my partner has recently walked out on myself and 3 children. we have one child together the other two are from a previous relationship of mine. all children remain with myself in our home. im also pregnant with our second child. the home we share is in his name and his mortgage, does anyone know where i stand and if i can remain in the home with the children? ive heard i may be able to do this by applying to the court under scedule 1 of the childrens act?? any information would be much appreciated, thank you.

babybarrister Wed 03-Jul-13 21:15:19

Message withdrawn at poster's request.

fireblade900 Wed 03-Jul-13 22:28:39

thank you. i have spoken to a solicitor today and she has advised to hold fire and wait for my ex to request i leave the property, and then go and see her to apply to remain in the home. she said that as we have children together i would maybe benefit from making the application under schedule 1 of childrens act. thank you.

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