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AIBU?

Share your dilemmas and get honest opinions from other Mumsnetters.

Original poster

If it goes to court what happens?

23 replies

babydove · 08/06/2022 08:30

Posting here for traffic!

Looking for some advice on behalf of a friend. Il try to keep it short but I'm worried she may be making a mistake.

DF (friend) and her XDP are separating. He is controlling and abusive. 3 children, and 1 home (bought cash) both names on deeds.

DF wants to go to court and refusing to leave the house she believes if she goes to court they will grant her permission to stay in the house until children are 18.

Her XDP wants to sell and split the money.

DF has no funds for a solicitor and is worried if she takes half the money she will not have enough to buy another property and the money will then be spent on renting. She will also be the main carer for the children. I'd imagine her ex would have them no more than perhaps 1 days a week.

I'm worried she is going to waste money going to court only to have them force sale anyway. I don't want her to borrow and waste money on court fees to only end up selling.

Realistically what is the outcome of this goes to court? They are not married but her ex will have money for a solicitor as he have substantial saving.

Any advice welcomed please so I can try and advise her as best I can. She's a lovely person and fantastic mum x

OP posts:
gobbynorthernbird · 08/06/2022 08:59

She's not got a hope in hell.

Original poster
babydove · 08/06/2022 09:02

gobbynorthernbird · 08/06/2022 08:59

She's not got a hope in hell.

This is as I suspect. I'm trying to advise against court as I think it's going to get nasty and cost a lot of money and she won't get the result she wants.

OP posts:
titchy · 08/06/2022 09:03

gobbynorthernbird · 08/06/2022 08:59

She's not got a hope in hell.

There's no way you know that. Hmm Given they're not married then the children will be the only thing the court takes into account, and in doing so will look at the respective ability of both parents to house them. She needs a solicitor - no one here can say for certain what would happen with no information.

titchy · 08/06/2022 09:04

She can self represent at court, possibly paying for a barrister for the day. Mediation should be a first step though.

TirisfalPumpkin · 08/06/2022 09:40

She needs some proper legal advice, but, having divorced a couple of years ago:

The presumption is 50:50, you can present reasons why it should not be. But, unless there's major extenuating circumstances (which are about needs - of children, of parents to stay housed - not rights/wrongs in the marriage, not even abuse) - she is highly unlikely to get to tie the capital up for 18 years. Selling and her moving into a rental that fits the kids and gives them continuity with schooling etc is likely to be deemed to meet their needs and be a more proportionate way of doing so than keeping the separated couple financially entangled for years. Courts tend to favour 'kids looked after and clean break' as far as possible.

Tinkywinkydinkydoo · 08/06/2022 09:50

Realistically it’s very unlikely given all the reasons pp have said. You should try and persuade her to save up to visit a solicitor, just the one visit should give her a clear idea of what she’ll be up against.

Dacquoise · 08/06/2022 10:00

She won't have the same rights regarding the house as if she was married. However, she will be able to claim child maintenance from her Ex as the main carer which may top up her income to fund her accommodation. She would be wise to avoid a court battle regarding the house as legal fees are outrageous and the stress is awful. Avoid at all costs.

Might be better to look at options for housing and work, if possible. What about help to buy schemes?

FarmGirl78 · 08/06/2022 10:08

I've done a lot of reading up on this recently for my fella's divorce and financial separation from his ex-wife. Judges these days are less likely to go for 'mesher orders' (one party keeping the house until child is 16/18) as more likely to go for a clean break order. If there's no mortgage on the house as it was bought outright for cash then surely to get her own place there would be enough for a deposit and she'd just have to take out a mortgage?

Theres plenty of other options other than "going to court".... They can each have a solicitor and just thrash it out with letters going back and forth, they can let one solicitor draw up an agreement suitable for both of them, they can come to a decision using a mediator to help them negotiate, various different options.

EvilPea · 08/06/2022 10:12

FarmGirl78 · 08/06/2022 10:08

I've done a lot of reading up on this recently for my fella's divorce and financial separation from his ex-wife. Judges these days are less likely to go for 'mesher orders' (one party keeping the house until child is 16/18) as more likely to go for a clean break order. If there's no mortgage on the house as it was bought outright for cash then surely to get her own place there would be enough for a deposit and she'd just have to take out a mortgage?

Theres plenty of other options other than "going to court".... They can each have a solicitor and just thrash it out with letters going back and forth, they can let one solicitor draw up an agreement suitable for both of them, they can come to a decision using a mediator to help them negotiate, various different options.

But they aren’t married.

MakingNBaking · 08/06/2022 10:12

If he is abusive, then staying in the house until the youngest turns 18 may not be the best option anyway. He will likely take every opportunity to interfere along the way in order to protect his investment. And as she will already have to deal with him about the children, that may be the straw that breaks the camels back.
A shared ownership property may be the way ahead. If she is able to purchase a share cash with no mortgage then the rental element will be far below local private rental rates anyway.

GiltEdges · 08/06/2022 10:15

It's a false economy not to get a solicitor, she needs one. If she's determined to go to court, she'd also be wise to ensure she has a barrister there representing her on the day. Still no guarantee she'll get the outcome she wants, of course...

Original poster
babydove · 08/06/2022 10:24

Thanks everyone some good points made. Does anyone have an idea of roughly the cost she could be facing taking this to court? Sorry I'm a bit clueless never been in this situation myself.

OP posts:
ifonly4 · 08/06/2022 10:38

If I were her, I'd phone a solicitor and ask if I was entitled to legal aid or how much a one off appointment would be.

PaddingtonBearStareAgain · 08/06/2022 10:38

TirisfalPumpkin · 08/06/2022 09:40

She needs some proper legal advice, but, having divorced a couple of years ago:

The presumption is 50:50, you can present reasons why it should not be. But, unless there's major extenuating circumstances (which are about needs - of children, of parents to stay housed - not rights/wrongs in the marriage, not even abuse) - she is highly unlikely to get to tie the capital up for 18 years. Selling and her moving into a rental that fits the kids and gives them continuity with schooling etc is likely to be deemed to meet their needs and be a more proportionate way of doing so than keeping the separated couple financially entangled for years. Courts tend to favour 'kids looked after and clean break' as far as possible.

RTFT. They aren't married.

ifonly4 · 08/06/2022 10:41

Just had a thought, it might be worth her checking out if there's a local mediation service, support charity/other for those in abusive relationships. If not, Citizens Advice might be able to help.

LondonBased · 08/06/2022 10:51

You should post in the Legal section of MN and your friend needs to speak to Women's Aid. She must report the abuse in order to protect her children going forward. AFAIK she has few rights as they they are not married, but OTOH, it is easier for her to get away from him for the same reason.
I agree with pp that a clean break/house sale and split the proceeds/claim child support is probably going to be her best option. Wait for him to take her to court for contact (he might not bother).
Your friend will get some excellent support and advice if she posts/reads the relationship board on here.

AndSoFinally · 08/06/2022 13:20

If they're not married then the children won't come into the reckoning on selling the house. They own the house jointly. Unless they have another legal agreement stating that they own the house in some division other than 50:50, then they own it 50:50 and a judge can't change this. It would be like agreeing to pay x for a car and then going to court to get a judge to say you only need to pay y because you've got children. No. The original legal agreement in which they own the house 50:50 will stand. The only thing that gives you more rights to deviate from this is being married, and she isn't, so she's wasting her time.

Flatandhappy · 08/06/2022 13:24

There is some seriously bad and inaccurate advice on here so please make sure your friend gets some proper legal advice.

Collaborate · 08/06/2022 14:13

gobbynorthernbird · 08/06/2022 08:59

She's not got a hope in hell.

As a family lawyer I'm staggered anyone can be so cruel as to come on here and offer advice so staggeringly inept and wrong. Was that deliberate?

No one can advise the friend without having full details. She should see a solicitor for at least initial advice.

Collaborate · 08/06/2022 14:15

AndSoFinally · 08/06/2022 13:20

If they're not married then the children won't come into the reckoning on selling the house. They own the house jointly. Unless they have another legal agreement stating that they own the house in some division other than 50:50, then they own it 50:50 and a judge can't change this. It would be like agreeing to pay x for a car and then going to court to get a judge to say you only need to pay y because you've got children. No. The original legal agreement in which they own the house 50:50 will stand. The only thing that gives you more rights to deviate from this is being married, and she isn't, so she's wasting her time.

This is the second bit of crap advice in this thread. The children absolutely do come in to the reckoning - either under Schedule 1 of the Children Act or under a claim under TOLATA.

This is why some jobs have to have professional qualifications.

AnotherDelphinium · 08/06/2022 14:23

THEY ARE NOT MARRIED

I’d repost mentioning this. People are offering advice based on divorce law; this is not a divorce. One person wants to sell a jointly owned asset, and if she refuses, he is able to apply through the court. If she has very young children, a court may grant a delay, but that’s about it.

It might be worth getting some legal advice, but quite frankly, I’d avoid it going to court and if a solicitor is pushing it, ask if they’ll take fees as a % of everything they get above 50:50, their answer will give a great indication of how much they truly think they’ll add in value. There’s a reason why people say the only winners are Solictor’s…

Maytodecember · 08/06/2022 14:25

MakingNBaking · 08/06/2022 10:12

If he is abusive, then staying in the house until the youngest turns 18 may not be the best option anyway. He will likely take every opportunity to interfere along the way in order to protect his investment. And as she will already have to deal with him about the children, that may be the straw that breaks the camels back.
A shared ownership property may be the way ahead. If she is able to purchase a share cash with no mortgage then the rental element will be far below local private rental rates anyway.

What @MakingNBaking says. He could be forever moaning about the house, garden, get this repaired, that changed etc….

Court costs are dreadful, she should avoid that.

Original poster
babydove · 08/06/2022 20:17

Thanks everyone for the advice I've passed a lot of this on but ultimately she needs some proper legal advice so she's going to ring the solicitors tomorrow. Personally knowing her partner I think a clean break is the best thing for for her and the children as he will still have some element of control over her if she remains in the house. Again really appreciate it so thanks for taking the time to post. X

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