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Schedule 1 of the children act - can anyone advise?!

(12 Posts)
UnsureOfOutcome Fri 25-Nov-16 16:44:47

Finding all this very confusing and would really appreciate any wise words!
I'll be as brief as poss, without leaving anything out...

DH split up with his ex-DP six years ago. They have a now-12yo DD, who is on the autistic spectrum, but at the high-functioning end (mainsteam school; gets the bus in by herself in the morning). DH bought the house they lived in on his own; it's entirely in his name and he has paid all the mortgage and utility bills ever since (he moved out when they split so that they could stay on/keep things stable).

DH and I got together about a year later, and got married two years ago. We have a 2yo DS and I have an 8yo DS from a previous relationship. Both are NT, as far as we can tell.

About two years ago (after a year-long period of negotiation with the union; his work were insisting on changing his job title and reporting line) DH resigned from his job and now freelances. As a result his income has about halved. A year ago, therefore (ie five years after they split up) he said to his ex that he now needed to sell the house in order that we were able to buy somewhere. He offered his ex a third of the equity in the house (tiny terrace but it's in central london and he bought it well over a decade ago, so that would come to around £225k). She said she wanted half. To cut a VERY long story short(ish!) they've been to mediation, and he eventually said ok to half, as we just want to a) move on with our lives and b) stop paying out £3.5k a month in rent and mortgage and bills on two houses, which we absolutely cannot afford (having to draw on my savings every month). She's now said that she can't countenance moving DSD out of the house, and wants to stay in it until DSD is 19 - and then she'll accept half the equity. She claims that under the children act, a judge will a) allow her to stay on in the house and b) that once DSD turns 19, she herself will be entitled to apply to have the house as she has ASD (hence ex saying she needs half of it then, to continue to house DSD; if DH doesn't grant that she'll get DSD to apply to court for the whole thing).

I honestly think she's taking the piss, but am now so bemused by the whole situation that I don't know what to think. Is she right? Could we really be in a situation where DH never gets access to any of the house he's bought and paid for? The very last thing either he or I want to do is leave his ex and DSD without anything - hence the offer of equity - but she won't admit that the other two kids have any rights, because, in her words, "they don't have special needs". The whole thing is heartbreaking, and hugely stressful, not to mention utterly financially unsustainable for us.

I'm so sorry for such a screed. Can anyone advise at all? We feel we have no choice but to go to court, but I'm worried we'll pay for that, and then be left with nothing. I'd be eternally grateful for any advice anyone can give!

Fourormore Fri 25-Nov-16 17:33:22

Others more informed will be along soon, and I'd also recommend you take proper legal advice, but my understanding is that where an ex spouse retains the right to live in the former marital home, he/she would be expected to cover the mortgage and utilities, unless there was a huge disparity in income.

You refer to the ex as DP, were they not married? In which case, she may have even fewer rights in terms of remaining in the house they used to share.

UnsureOfOutcome Fri 25-Nov-16 19:44:57

Thanks so much for replying, Fourormore. We'll definitely take legal advice - I think we'll have to now - I just wondered if people had a sense of where we might stand, really. They weren't married, no. DH feels - absolutely rightly, I think - that she is still entitled to a share of the property, since their relationship was in good faith. And as I said, in mediation, he went up to 50%. But where it all fell apart was her saying she wanted 50% plus an extra seven years in the property. Even if she were to take the mortgage on, it leaves us in a position of total uncertainty (in that she's already mentioned that DSD should apply to have the house made over to her when she leaves school on the grounds of her ASD), and still having to pay over the odds on rent, when if we could just sell it and divvy it up we could all get on with our lives. Oof.

Fourormore Fri 25-Nov-16 21:14:48

I think she's trying her luck tbh. They weren't married, their child is not so severely disabled that you'd expect special allowances to be made financially.
I think, though am happy to be corrected, that as they weren't married she doesn't have any more rights than any other tenant so she's very lucky (in terms of the law) that your DH has offered her 50%.

Collaborate Fri 25-Nov-16 21:49:46

I agree she's not entitled to any of the proceeds of sale of the house for herself. He should wait 6 years then force the sale and keep 100% of the proceeds.

UnsureOfOutcome Sat 26-Nov-16 07:46:16

Thanks so much, both of you. Again, the last thing we want is to leave them homeless, or to upset DSD in any way. And there's no question that moving house will be upsetting for her. But she's been so so sooooooo unreasonable about it - and her claim that DSD will be able to claim the whole house for herself under schedule 1 when she hits 18 is terrifying. I think if we had to keep paying out for the next six years and then were able to sell the house, we'd settle say 20% on DSD for her to go to university/do a course/generally start her life off. But the idea that we will NEVER be able to get our hands on any of the equity, on top of having to continue to struggle every month to make ends meet for the next six years makes me feel ill.

Collaborate Sat 26-Nov-16 21:35:10

her claim that DSD will be able to claim the whole house for herself under schedule 1 when she hits 18 is terrifying

It's terrifying because it's so untrue. It's fantasy, post-truth stuff. You might as well worry about alien abduction.

UnsureOfOutcome Sun 27-Nov-16 08:26:41

Thanks, Collaborate - that's really reassuring. DH and I are both intelligent, educated people, and I'm perfectly capable in my professional life of analysis and logic. But I think this has all been so baffling and upsetting that we've lost all perspective. I assumed it would be extremely easy to resolve through mediation - particularly when he offered her 50% of the equity - so we're just reeling a bit. And because she claims she's taken advice from lawyers and they say the fact that DSD's on the spectrum is the only significant factor, you start to lose confidence. DH will look after DSD as long as he lives, and neither of us want to deprive them of a place to live, but we want to be able to house ourselves too.

jules179 Sun 27-Nov-16 08:40:28

You seem to have gone a long way and your DP made some huge financial offers - getting independent legal advice to base what you are doing on seems essential.

His ex partner might absolutely believe what she is saying re her rights but that doesn't make it true.
Getting your own advice for you and DH will hopefully reduce your own anxiety and uncertainty in this situation.

babybarrister Sun 27-Nov-16 11:55:57

Schedule 1 is for child provision - the best that could happen is that DSD will be able to live in the property until a particular age - 18 or 21 most likely - and that the property would be transferred to her NOT the ex. From the little you have said on here, I think that it is highly unlikely that at the end of the period that the property would not revert to your H.

The ex herself can only have a claim if she brings a claim under TOLATA [have a google] - she would have to show that there was a common intention that she had a a share of the equity ....very difficult claims to bring indeed

babybarrister Sun 27-Nov-16 11:57:17

I should make it clear that your offers is whatever form must provide a roof over DSD head and preferably not in the form of cash to rent ....can the ex buy with the 50% and her mortgage capacity?

UnsureOfOutcome Mon 28-Nov-16 07:50:37

Thanks so much, again, for replying, everyone. babybarrister, his ex could certainly buy with 50% plus her mortgage capacity. 50% of the equity on current valuation would be around £350k (tiny terrace but it's in west london and DH bought it about 12 years ago). However, the current house is in W10, and it's possible ex would have to move, say, a tube station further out (she wouldn't be able to buy DH out). She signed something when they bought the house saying that she had no interest in it, which I presume means she couldn't bring a claim under TOLATA? She hasn't paid for anything connected to the house since (all utilities bills and mortgage paid throughout by DH, to this day). She paid the stamp duty initially; not sure if that makes a difference.

All of this said, DH is now unsure about the 50% offer as, before the mediator told DH he was wasting his time and to give it up, DH had said that the 50% would come with the proviso that if they spent any money on repairs before sale they should bear equal cost, and if there were any capital gains to pay (possible because it hasn't been DH's primary residence, although he's just been renting elsewhere) that would come off the total equity too. She said no to both; specifically the capital gains as this was "DH's fault" (despite the fact he'd only be liable because he's paid for her to live there for 6 years). At this point he kind of despaired, and wants to revert to his original offer of a third of the equity, in order to take account for these costs. I guess we'll take legal advice and see what's the best offer to make...

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