To expect to be able to stay in the house?

[Mooey89]

I genuinely don’t know if I am being unreasonable.
STBXH and I split 6 months ago, due to his drinking, lying, and his u turn on wanting children.
I have a DS who is 8.
When we bought the house, I put down the deposit of 20k.
Since then with the house price increase the house has gone up considerably in value, but so has everywhere else. So even downsizing I would be doubling my mortgage for a small flat.

I asked DH to move out. He refused. He won’t even leave the marital bed. We don’t have a spare room.
He can’t afford to take over the mortgage. I can, but I wouldn’t be able to buy him out at this stage.
I really, really, don’t want DS to lose his home.

He’s now saying we need to sell and he will be living here until it’s sold.
I suggested he moved out, let me cover the mortgage, and in 2 years when I have been able to pay down some debt I will then be able to buy him out, but he says no.

I don’t know if I’m being wildly unrealistic? But I don’t want my son around an alcoholic anymore and I can’t carry on like this.

[quote Jessie75]@THisbackwithavengeance no it will not cost him thousands, the court will award his costs against her if she doesnt cooperate with the division of assets[/quote]
Costs order are rare in the family court and in nearly all cases each party pays their own costs. Especially so if the case settles rather than being determined by a judge at final hearing. Unless this house is now worth millions (I’m guessing you bought it for 200k as the deposit was 20k) or there are other huge assets, if they went to court, the majority of the equity would be swallowed by legal costs.

In the meantime find a paper trail of the 20K deposit you put down. You may need it at some point.

@CloseYourEyesAndSee

Get legal advice

This is your best option. ^

Where are you thinking he’ll go if he leaves? If he doesn’t have the money to find somewhere to rent, buy furniture etc he has little choice but to stay until he can get funds together to go. If it were you leaving what would you consider fair? What’s the rental market like where you are, are there suitable properties he could move to short term if he had the money?

Marriage protects both parties legally in the event of a split, it’s his house too and he has as much right to stay there as you do which means you need to negotiate. You taking over the mortgage is fine, except he’s entitled to half the equity in the house and will need this to start over so how are you going to pay that?

It would be great if they would just leave when we’re done with the marriage, but realistically, and reasonably, that’s unfair. You have my sympathy, I’m in a similar position and it’s very hard but you need to agree a plan with him to separate - you can’t just kick him out of his own home.

Can you think about how it might work for you both living together in the short to medium term? If he won’t leave the marital bedroom, can you sleep wherever you’re expecting him to sleep? Can you start to separate finances - eg a common pot for household expenses and a separate account for wages, child benefits etc so you each have control of your money outside of running the house?

Could you not take out equity in the house and give to him? Good luck 💐

I think you have to start getting your head round the idea of moving out and making a fresh start for you and your son and look at the advantages. I had to seriously downsize after divorce with two small children and it wasn’t the end of the world.

Please do not listen to people saying that the courts will not put your child’s security and comfort over the need for your ex to have a clean break. Putting the needs of your child first is exactly what the court will do. To do so is enshrined in law. Section 25 of the Matrimonial Causes Act stipulates that when considering the exercise of its discretion upon an application for a financial remedy, the first consideration is the welfare of any child of the family whilst still a minor.

That of course is not to say that your husband’s needs are not also considered. But they are not considered “first”.

If you have a plan to buy him out in a couple of years, supported by evidence and properly reasoned, then you have a decent chance of staying in the house. You will be able to discuss your proposal with your solicitor. Have a think about whether you can raise even a small lump sum sooner as part payment. And don’t assume it will be a 50/50 split. Depending on the circumstances (in particular your earning capacity v his earning capacity) the court has the power to vary the shares in which you own the house. 60/40 is quite common.

The bigger hurdle for you in my view is getting him to leave the family home in advance of concluding your financial remedy application. You can expect the process to take a year or longer if it goes to a final hearing and it’s hard to compel him to leave in advance of that.

The Courts can make occupation orders requiring a co-habitant to leave a home, but you have to have grounds for making such an application. Have a look at Occupation Orders and see if you think you have grounds. The court will not allow one party to use such an order as a device to gain advantage in the final money on divorce outcome. Judges are alert to this being used tactically and will only grant such orders if there are grounds for them.

I hope your solicitor gives you the advice you need swiftly. Good luck.

@DomPom47

Could you not take out equity in the house and give to him? Good luck 💐

And how is op supposed to do that?

Op, I think you are being a bit unrealistic. There is a definite move towards a clean break in divorce and usually one partner is bought out of the marital home or it's sold and the equity split.

The number of shared children and the length of the marriage has an impact on how assets are split. Sometimes the years living together can count towards the length of the relationship, but that very much depends on circumstances.

Also if you do go down tne buy him out in two years method then make sure you check out occupational rent. Even if your paying the full mortgage you could end up liable to owe him money if the properly would get more rented out (likely if it has gone up in value) as your in theory renting half from him. Not saying it’s right but my partner got caught out by the occupational rent rules big time

I don't blame him for not wanting to leave his home - if a woman was in his position she'd be advised to stay put too.

Definitely get legal advice but don't hold your breath that you'll be able to keep the house and force him out, especially if DS isn't a shared child.

Legal advice, and then mediation and likely court. Expedite as much as possible.

The starting point is “the housing needs of the parties” (especially any children) followed by the other needs of the parties (especially children). I would think this would give you a good chance of retaining enough equity to stay in the house, as only you will have to care for your ds. If you can afford to buy out whatever smaller portion the courts give him.

I’m not a family lawyer though so I don’t know any of that for sure, just my experience and recalling adviCe I was given.

And how is op supposed to do that?

Remortgage? People do it all the time.

@LadyMacbethWasMisunderstood

Please do not listen to people saying that the courts will not put your child’s security and comfort over the need for your ex to have a clean break. Putting the needs of your child first is exactly what the court will do. To do so is enshrined in law. Section 25 of the Matrimonial Causes Act stipulates that when considering the exercise of its discretion upon an application for a financial remedy, the first consideration is the welfare of any child of the family whilst still a minor.

That of course is not to say that your husband’s needs are not also considered. But they are not considered “first”.

If you have a plan to buy him out in a couple of years, supported by evidence and properly reasoned, then you have a decent chance of staying in the house. You will be able to discuss your proposal with your solicitor. Have a think about whether you can raise even a small lump sum sooner as part payment. And don’t assume it will be a 50/50 split. Depending on the circumstances (in particular your earning capacity v his earning capacity) the court has the power to vary the shares in which you own the house. 60/40 is quite common.

The bigger hurdle for you in my view is getting him to leave the family home in advance of concluding your financial remedy application. You can expect the process to take a year or longer if it goes to a final hearing and it’s hard to compel him to leave in advance of that.

The Courts can make occupation orders requiring a co-habitant to leave a home, but you have to have grounds for making such an application. Have a look at Occupation Orders and see if you think you have grounds. The court will not allow one party to use such an order as a device to gain advantage in the final money on divorce outcome. Judges are alert to this being used tactically and will only grant such orders if there are grounds for them.

I hope your solicitor gives you the advice you need swiftly. Good luck.

Yes, the child’s welfare is the first consideration. And I’d expect credit for the deposit in a short marriage (but might be quite little compared to increase in equity). BUT, from the facts it seems that OP’s earning capacity is actually higher than her DHs. She says she can afford the mortgage on her own whereas he can’t. So I can’t see an adjustment in favour of the OP on the basis of earning capacity - in fact the DH might try to argue the opposite. Very often, the family home needs to be sold and keeping someone from their share so that the other can stay in the home will only happen where there genuinely is no other viable option.

OP is the debt joint or sole? What was it taken out for?

A few factors will be taken into account if it goes to court including how long you were married, what assets you brought to the marriage each and current assets. A private agreement is always preferable, I think it's now compulsory to try mediation. Speak to a solicitor with experience in these circumstances

He'll need his equity to move on. If you cant buy him out then you'll have to sell.

@LadyMacbethWasMisunderstood
I have first hand experience of a court ordering a house sale, giving myself and a 17 year old and an 11 year old 14 days to vacate the house. And not only that the judge offering my ex legal advice on how to engage bailiffs if we didnt comply.
Theh were my ex husband’s children too btw.

@LadyMacbethWasMisunderstood The judge is exact words were if you can afford to have paid the mortgage for the last five years on your own in this house you can afford to rent end of story that is the children’s housing needs met as far as the court is concerned.

Never mind that we were mid pandemic and there were no houses to rent, there were no removal companies available, storage places were booked to capacity.

I think people often forget that a child doesn't need housing in the home they are in. So their housing needs can be met and the family be sold.

Its not one or the other.

You’ll feel much better when you get legal advice

They should also help you try and negotiate, eg would he agree to a deferred sale if you helped cover his rent in the meantime, or he got a bit more in 2 years.

If he takes the (reasonable) view he wants the money now, then also talk to an FA to see if you can find a way to buy him out.

That sounds dreadful for you and the children Jessie75. I hope things are improved now.

I acknowledge that each case is very fact specific. In my 25 years of professional practice I have seen a whole range of outcomes. Very little is guaranteed. But I do think it is important that the OP knows that her proposal is worth exploration. It is the sort of arrangement I would be looking at with great attention were she a client of mine. It doesn’t sound to me that it is unrealistic (from the little I can glean from the post). And it is on all fours with the outcomes many of my clients have achieved. The important thing is that the OP gets a chance to explore her proposal in detail with her solicitor and that she is not bullied by her ex or misled by well meaning (but wrong) advice that her staying in the house is not even within the wide range of possibilities.

OP, if you go to court and want a judge to determine the outcome (it has to go to a final hearing for this), an estimate of costs if you are legally represented would be around £30,000 plus VAT and that’s pretty conservative. Your DH would likely incur the same if he got representation. You can represent yourself of course but that won’t be a pleasant experience and it will probably take at least a year until you have a final order during which time he will still be living with you. So try to settle without court proceedings if possible and listen v carefully to any legal advice you obtain and don’t seek to push for something unrealistic. If your solicitor says that sale is likely, listen to that. Try to encourage your ex to get legal advice too, so that he isn’t being unrealistic either.
It’s very hard to give advice as to what will happen for definite so your solicitor will probably say that this is what might happen but that they don’t know for sure. This is because the judge has a discretion so you can never know for sure. The only way to find out for sure is to go to a final hearing but the expense and delay in that means that for most, it’s really not worth it.

Finally, beware of only using free appointments from firms as they are often short and don’t really give you much clarity on your position. Instead, ask if your local firms do a fixed fee initial consultation, which will be much more thorough and should also provide you with a follow-up advice letter setting out your options. You can then take stock and consider your options. Go to the consultation with as full details as possible of the following:
-value of family home - good to have 2 or 3 valuations for better accuracy

-yours and DH’s earnings
-savings
-debts
-pensions (ideally you’d get a CETV but this might take a while)
-outgoings
-an idea of what you’d need to rehouse, ie costs of homes in your area and an idea of how much the bank would allow you to borrow.

Having all of these will give the solicitor a much clearer picture from which to advise. Much better than going to the meeting and saying that you don’t really know what the assets are worth.

@GCAndProud, your £30k in fees is almost exactly what it cost my ex to get 47.5% of the equity in a home I'd owned solely for years before I met him!

The stupid thing was, I'd already offered him £72k and would have gone to £80k, but he turned it down flat, twice (once prior to proceedings, once at mediation). He ended up getting £97.5k, but it cost him the best part of £30k to get it, so was no better off overall.

Of course YANBU, not at all! You STBXH is the unreasonable one and alcoholics usually are VU and very selfish!
If I were you, I seek out legal advice from a solicitor. You could also ask Women's Aid I think?
I'm really sorry you and your child are being put through this OP! Please let us know how you get on?

Sorry op I have no advice on the mortgage except to seek legal advice. 6 months is a long time to still be living with someone that you have split up with especially sharing a bed. If I were you then I would buy a blow up bed for in the sitting room for him or you to sleep on, or could you sleep in your son's room. I would close all joint bank accounts or anything else linked to him and set up my own bank account etc. I would start living independently from him and not tell him any of my business.

I hope things get better for you and your son soon 💐

@Aprilx

You need to keep focusing on what is legal rather than what feels fair / moral etc. And no, if he doesn’t agree to go it would be very difficult to remove him from the marital home, him drinking, lying and doing a u turn on wanting children are not legal grounds to get him out.

I take it from your wording that your child is not his so you have not been together less than eight years? A “short” marriage will mean it is less likely that assets will be split 50:50. But yes as mentioned, you need legal advice to determine the best way to proceed. I suspect that selling the house is a real possibility.

About him deciding he doesn't want children, I wonder could you get an anullment on those grounds? I know for us Catholics, the openess to children is a prerequisite for a valid marriage so one party's refusal is grounds for an anullment in the eyes of the Church, but I'm not sure if it is in British Law. It might be an idea to find out? Again, I would echo other posters and urge you to seek legal advice which I see you have arranged.