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Please help me help my Mum

(10 Posts)
starzzz Mon 13-Oct-08 16:04:56

She lives in a council house with my dad, they are married and have been for years, all kids grown up and left home. Basically my dad has made my moms life miserable for the last 20 years and now she wants out, so does he apparently.

Anyway, he has no job and no money, as he has not worked for years. My mom wants him to go, but he refuses as he has nowhere to go etc. He has not been violent to her.

She pays all the bills and the council house is in her name. How can she make him leave the house? (she doesnt want to leave it herself, as it is her home, and she couldnt afford to live anywhere else - she does not earn alot).

Please help us.

Thanks

mumoverseas Mon 13-Oct-08 17:35:56

well the most obvious solution would be divorce proceedings. If she is miserable and wants him out, she may as well consider going down the divorce route. She MUST NOT leave the house, as if she does, she will be considered to have made herself intentionally homeless and therefore will not get any assistance with rehousing. He will also not want to leave voluntarily, as he won't then get any assistance with rehousing.
If they go through divorce proceedings then they can basically get an order from the Court saying he should leave and then he won't have been made intentionally homeless and will get assistance with rehousing.
If they both want out, a divorce would be really straightforward and there is no reason why they would even need solicitors and could act in person (I'm sure your mum could get all the help she needs on here to assist her with the paperwork) and she'd only need to pay the court fees which would be limited to a few hundred pounds as opposed to thousands if instructing solicitors. Once the actual divorce itself is underway and Decree Nisi (the first decree of two) has been pronounced, an order ref the finances could be made which could include the fact that your dad should leave (very easy as in her name)
I would suggest that they talk about divorce. They could proceed with a petition immediately on either the other parties adultery (if relevant!) or the other parties unreasonable behaviour (very easy to get a petition through on this) failing that, they'd have to be separated for 2 years (is possible when under the same roof as long as separate bedrooms). Get your mum to test the water with him then get some more advice on here.

starzzz Tue 14-Oct-08 09:34:53

Thanks for your response. Have been reading up on the internet alot about her situation, and it seems my dad has more rights than her!

Thanks for your advice, i will pass it on. Unfortunately she does not have access to the internet, thats why im looking for her, and my dad does, so he will be clued up on his rights, and use them all to his advantage!

They both want out yes, but, i doubt my dad will agree to the divorce, because then he wont have any grounds for staying IYSWIM, he is going to be as difficult as he can.

Basically, she wants him out, he doesnt really give a sh*t, and he wont leave!! I feel so bad for her. I have given her a number i found on the net for womans rights advise, hoping they can help her.

missingtheaction Tue 14-Oct-08 09:51:07

Excellent advice from mumoverseas.

If he doesn't want to divorce she can set proceedings in place on the grounds of unreasonable behaviour, and when divorced he will have to move out. But this will be a slow process.

If she could consider moving she could manage the situation much more quickly - is there no possibility of this?

Where it may be worth getting some advice is on the financial situation. As they have had a 'long marriage' ie anything they have saved/own/pensions etc will all have been created during the marriage so they will have to split these 50:50 (they are proceeds of the marriage). If he hasn't worked for ages ahd she has he may make a claim for spousal maintenance.

starzzz Tue 14-Oct-08 09:59:48

Thanks missing.

Yeah im thinking divorce is the only way, but would be years before he is forced to leave, not ideal as he makes her miserable at the best of times, and would be so much worse for her at home that way.

She cant really move, as she is on a very bad wage, and couldnt afford to go private, and the council wouldnt rehome her, as she would be making herself homeless.

My mom doesnt care about any of the possessions, and they have no savings or anything, she just wants him to go, he can take what he wants, she doesnt want anything from him either (he has nothing anyway).

The only thing i can think of is for her to move in with my sister, therfore giving up tenancy of her home. Then, my sister "kicking" her out down the line, thus her becomming homeless, and getting a new council home.

mumoverseas Tue 14-Oct-08 11:56:40

sounds like her issuing a petition on his behaviour is the way forward. He doesn't have to agree with it and he would be pretty stupid to defend it as if there is a contested hearing and one party is saying the marriage has irretrievably broken down (due to his behaviour) and he is saying it hasn't, it is pretty clear to the judge that it has broken down and a decree will be granted. Him defending it would be a delaying tactic only and the divorce would ultimately go through. To be honest, he'd probably struggle to find a solicitor to take him on if defending a divorce and if he did, they'd definitely want a few grand up front.
It wouldn't take years to get him out, she could issue a financial application at the same time as the divorce petition if she needed to and the first court appointment would (depending on the area) be around 12 weeks later. Hopefully at that hearing the District Judge would make it pretty clear to your dad that he would need to leave the house and if there are no other matrimonal assets, an Order could be made to that effect.
Your mum MUST not move out as she really will weaken her case for re-housing. her best bet is to issue a petition asap on his behaviour, then if it gets worse and he starts to harass her she could make an application for a non-molestation/occupation order (forms of injuction) and could get him out that way.

starzzz Tue 14-Oct-08 12:07:33

Thanks mumoverseas... can you tell me what kind of petition she should get or is that what happens automatically when she starts divorce proceedings?

This may seem like a dumb question, but how do you actually start divorce proceedures? Just get the forms off the internet?

Thanks

mumoverseas Tue 14-Oct-08 15:43:57

Hi starzzz, you can either get the divorce forms from your local county court or perhaps from a court website although I've not checked that.
Basically, there is one ground for divorce, that the marriage has irretrievably broken down. This has to be backed up by one of five facts. The first two are the other parties adultery or their unreasonable behavior and on both of these facts a petition can be issued immediately. Failing that, you are looking at 2 years separation with consent of respondent (person not issuing the petition), desertion for 2 years (rarely used) or 5 years separation with no consent. I would say that the majority of petitions are on the respondents unreasonable behaviour, and it is relatively easy to get a petition through on this. Your mum will need to include in the particulars (the page in the petition where the allegations of behaviour have to be listed) several examples of his unreasonable behaviour. Some can be quite general, ie over recent years he has lost interest in their relationship, not remembered her birthday, refused to take her out socially/holiday etc and stuff like that. There must however be a more recent incident/event, basically the last straw. It does not have to be a mud slinging exercise (although I've seen petitions with numbered paragraphs going up to the late twenties! This is unecessary and only seeks to inflame matters. Four or five examples should suffice although it does vary from Court to Court. Make sure that your mum gets the form for an unreasonable behaviour petition as they can sometimes be specific. The Court staff are usually quite helpful although cannot give legal advice.
Your mum will also need the original marriage certificate as the date and place of marriage in the petition need to be set out exactly as in the marriage cetificate and this must them be filed at the Court with the petition and will be retained by the Court. If your mum does not have the original marriage certificate she can obtain a certified copy for a small fee from the local register office. She should allow a week or two to obtain this.
She will need to lodge (take to the court to issue) at least two copies of the petition (or three if she wants a sealed - stamped, copy for herself). If there are no children under 16 or still in full time education she does not need to complete the statement of arrangements form. She will also need to take the marriage certificate and a cheque for the fee (you will need to check how much this is as I've been on a career break for a couple of years therefore the fee may have changed) its probably around £250.
Once the petition is issued a copy will be sent to your dad together with an acknowledgement of service form which he will need to complete and return to the Court within 14 days. If he fails to do this, then there are various steps that your mum can take in order to progress matters. Once he has returned it, the Court will forward it to your mum, who will need to prepare an affidavit (sworn statement) in support of her petition. Again she can obtain the relevant forms from the Court office and I'm sure you'll get advice on here on how to deal with it. The affidavit must then be taken by your mum to an independant solicitor (ie not one she has seen or your dads if he has one) and they will charge around £7 to 'swear' it for her. Your mum will then need to send it back to the Court and it will then be considered by the District Judge (takes a few week) who will then hopefully give a date for pronouncement of Decree Nisi (first of 2 decrees). She does not need to attend this as it is simply read out in open court. Six weeks and one day later she can apply for the DN to be made Absolute. This is the final decree and the divorce is then finalised. Any more info required then just shout! Good luck to your mum. Very brave move for her x

starzzz Tue 14-Oct-08 16:57:46

Thanks Mumoverseas, you have been very helpful! I will print this off and give it to my mom. Will probably be posting loads of questions on here going forward, hoping i get loads more help.

Thanks

mumoverseas Tue 14-Oct-08 18:04:57

no problem starzzz, I'll keep an eye out for you!

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