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Can I move back into marital home and ask ex to move out?

(13 Posts)
Takebackcontrol Wed 19-Nov-14 17:01:47

Long bit at the end to put it into context - sorry.

I have a few questions around this subject which is, at the moment, an idea I'm toying with so any advice or past experience from Mums & Dads would be appreciated...

What I want to know (before I bring this up with my ex) is the following:

1. What rights do I have to 'ask' to re-enter and occupy the house with the kids for the foreseeable future and my ex move out? I still have keys etc.

2. What rights does he have to refuse/keep me out etc and is it advisable to look into an occupation order (for either of us) bearing in mind neither of us really want solicitor/court costs. I'm not prepared to say there was violence in order to obtain one and I can say I don't feel scared anymore.

3. I hope to offer to pay almost half of the mortgage (which is around the same amount that I use to top up my rent payment after housing benefit anyway). This would be almost enough for him to rent a nice flat somewhere outside of the town. I know his financial situation has recently improved with some sort of help from the family to take over car payments and do some sort of swap.

4. Is it unreasonable to expect him to move into a smaller property as most of the week he's alone? I would happily live in smaller but ironically the 4 bed mortgage is smaller than the 3 bed rent! Plus I wouldn't have to scrabble around again for deposits, 1st months rent and fees again.

5. If I do take possession, am I able to allow him reasonable access when needed (for belongings etc) but refuse him permission to come and go as though he still lives there?

6. If the house does sell because it's no longer possible to keep up with the mortgage, how difficult will it be to obtain housing benefit again during say, the last month of exchange at which point I'd be homeless again?

I was in a domestic abuse situation (no violence but very aggressive and scary) where I mainly suffered financial abuse through the entirety of our relationship. I left in July with the children (5 & 7) and rented a smaller property in a different town - initially for the distance and because it was available and cheaper. My ex was left in the house (4 bedrooms/3 floors so fairly big) and he has the kids 1-2 nights a week currently.

Although my name isn't on the mortgage we are married (no divorce filed for yet) and it was our marital home until I left at the end of July. I've already had advice on here that it's effectively some sort of split if or when we do eventually sell so I'm not looking for information on that.

Things are fairly amicable but we're not exactly friendly and only really communicate by text as I feel less likely to be manipulated this way.

I really need to move back to the town where we lived and this was always my plan. The kids school, clubs, friends etc are there. Neither of us have family in the area and he has no friends or work in the town where he lives. He's often said that if we sell, he'll leave as there's nothing there for him except the kids (no comments needed on this). Basically, other than the one or two evenings he spends with them, he sits alone in the house or goes to work which is half an hour away. It's not a great existence but he's the only one who can improve it and maybe a move into a neighbouring town/village would work for him. Rightly or wrongly, he never made much of an effort with friends or neighbours and even less so now that I've gone.

I work part-time around the kids, have a strong bond with an amazing group of friends (mums and dads) in the town and am very close to most of the neighbours as it was a new development and all the kids met and grew up together there.

He's not doing well financially as he got himself into credit card debt. This was beyond my control as I was never allowed to see financials and I did not benefit from his purchases (BMX bikes, golf clubs, fishing gear, car accessories etc) and he may not be able to mortgage again (which is why I hope we can somehow keep an asset between us in case things change in the future). He has a good salary and to outsiders appears wealthy.

I had a fair understanding that if he needed to cover the mortgage, pay child maintenance and rent himself a house, he'd probably go under and lose the house anyway which was why I thought I should leave him in it. I also left all of the furniture and took donations/charity shops to furnish my own (I love up-cycling anyhow!) I've now been trying to find a house to rent that will accommodate me and the kids but the area is just too expensive and we're beginning to feel isolated being away from everyone. The mortgage on our house is £850 and average rent for the same is £1000 plus. There is very little equity (I imagine after debt repayment, no more than £5-10k each if that)

I think that pretty much covers it but if there's anything you think I may have missed, please pipe up.

PS I fully intend to work towards full time hours once the kids are older and don't feel 'entitled' to stay there without contributing. I prefer to be independent and pay my way when I can :-)

PurpleWithRed Wed 19-Nov-14 17:04:33

Were you married? if so are you divorced or separated or still married?

PurpleWithRed Wed 19-Nov-14 17:05:37

whoops, sorry, so you are married but separated

InfinitySeven Wed 19-Nov-14 17:06:09

I'm no expert, but I don't believe either of you has the right to ask the other to leave. You can go to court, but your position is weakened as you have already left.

If he's unlikely to agree to leave, that would be your only option. It may well be that the court orders the house to be sold, though, if you cannot afford mortgage payments and it is not the residence of the children (which it isn't, if you moved out in July).

Takebackcontrol Wed 19-Nov-14 17:14:00

Interesting. I'll see if I can get a bit of free legal advice or at least scour the internet before I approach him. Neither of us particularly want the house to be sold as neither of us will be able to obtain a mortgage for the foreseeable future.

Takebackcontrol Wed 19-Nov-14 17:16:55

I need to approach this as though the mortgage payments can be covered. The risk of not being able to afford them is only one possible outcome in the future.

HeartHasShattered Wed 19-Nov-14 17:19:12

I presume cohabiting is out of the question?

That'd be the easiest way.

Legal advice to you would have been to stay put, and to apply for an order to ask him to leave, if necessary. There would be no benefit in moving out, because you'd end up funding two homes, and you'd lose position for the owned home. Maintaining the status quo carries some importance. Unfortunately, that's the same advice that your husband will get.

Takebackcontrol Wed 19-Nov-14 17:23:13

Co-habiting is definitely out of the question given the previous abusive situation and the animosity between us now. I simply didn't have the means to orchestrate an occupation order while I was with him and kind of had to 'escape' with a few bits and pieces and the kids. Emotionally I feel up to tackling this now and may have shot myself in the foot but at the time it was my only option.

STIDW Wed 19-Nov-14 17:25:16

Because you are married you both have the same rights to live in the former matrimonial home. The problem is once you have moved out and are housed elsewhere in practice it may not be very easy to move back and it is advisable to speak to a solicitor who can negotiate independently on your behalf. You can ask but if your husband doesn't agree to move out you can't make him without a court order.

When an application is made for an occupation order a court gives regard to all circumstances including the length of time you have lived separately, the duration of the relationship, the length of time since it ended and whether there are any children, available alternative accommodation or the resources to afford alternative accommodation. Also the housing needs and resources of each of the parties and of any relevant child; the financial resources of each of the parties; the health, safety or well-being of the parties and of any relevant child; and the conduct of the parties in relation to each other.

InfinitySeven Wed 19-Nov-14 17:27:23

Bugger, sorry. That was an insensitive suggestion - I got distracted.

Someone else may know the best course of action for you. An occupation order might be fine if you could afford to pay the mortgage without relying on him. I've only known of orders to make the non resident person pay when they were the one to leave.

He might pay anyway, to stop his credit file being trashed, but it he's in a lot of debt that might have happened already.

All the best, whatever happens.

Takebackcontrol Wed 19-Nov-14 17:41:29

Anyone have a clue what kind of cost a solicitor consultation might be?

babybarrister Wed 19-Nov-14 22:07:47

Neither of you can get the other out without an order of the court - it is very difficult to get an occupation order. Best therefore to get on with divorce and application to sort out finances so court can divvy up the assets as appropriate

luvmabub Fri 21-Nov-14 18:48:34

I've nothing to add to the previous posts only to let you know that you're not alone. I could have written the above thread almost word for word except I left with my daughter a year ago because he made life intolerable for us both

We re currently looking at selling to separate our finances. It's a long drawn out process and a costly one
The good thing is you sound much stronger and more able to deal with him

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