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Original poster

Please help. Separation, unmarried he owns house and we have kids

225 replies

mosel · 20/08/2022 12:51

Posting here for traffic

We have two kids, we need to split, he owns the house. Do I have any rights to stay at the property? I am main cater and we've lived here for the childrens whole lives

OP posts:
bellac11 · 20/08/2022 23:01

And there is no suggestion that they cant stay in the family home, this is what you seem to be missing

And the word family home is usually applied to a jointly owned asset, its not in this case

butterflied · 20/08/2022 23:05

The common law argument still comes up an alarming amount on these threads.

PyongyangKipperbang · 20/08/2022 23:09

I hope that your q about him having rights to the kids isnt because you are considering using them as blackmail to stay in the house "You leave or you will never see the kids again!".

Partly because it wont work and could end with him having full residency, but mainly because it will do appalling damage to your children.

If he works and owns the house then trying to come to an agreement where he helps you and the kids get housed would be best. Otherwise I would suggest that you go for mediation. No you cant stay in the house he owns if he insists yo leave but he needs to understand that just kicking his kids out because he doesnt want to be with their mother anymore is about as far from good parenting as it gets.

PyongyangKipperbang · 20/08/2022 23:14

Sparklypant · 20/08/2022 21:09

Yeah, it’s that simple. It really is.

how are people so utterly Ill informed?

Show quote history

Actually it isnt that simple.

If the OP never paid towards the actual mortgage payments but (say) paid £15k for a new kitchen and £10k for a new bathroom that increased the value of his property, she may have a claim against the property for those improvements. Even things like refurbishment, if she can prove she paid or contributed will count.

Its why single women are advised to not let a live in partner pay for home improvements as it may give them a claim over the property.

prh47bridge · 20/08/2022 23:32

bellac11 · 20/08/2022 23:01

And there is no suggestion that they cant stay in the family home, this is what you seem to be missing

And the word family home is usually applied to a jointly owned asset, its not in this case

You seem to be missing that the parents are separating, and the OP wants to know if she might be able to stay in the house with the children. She is the primary carer, hence the possibility of a claim. Yes, the children may be able to stay in the house with their father, but the courts may decide that it is in their best interests to live primarily with the OP, in which case they need a roof over their heads. It may be that the courts would reject a claim from the OP, but we don't have enough information to judge. Telling her she definitely doesn't have a claim is therefore wrong, as is telling her she definitely does. She may have a claim. She needs to consult a solicitor.

I used the term "family home" to mean the primary residence for the children and their parents, i.e. the home in which the family live.

bellac11 · 20/08/2022 23:49

OP hasnt been back, and I suspect this was a made up thread anyway

So, although she says she is a stay a home parent, it does not equate to her being their main carer, without more detail its impossible to say

Theres also nothing to say, that if she is their current main carer, she needs to remain so. Its not good practice to change a main carer if there arent any issues with that main carer but thats an assumption made.

But as I say, no clarification either way to many of the points made in the thread so none of us are any the wiser.

She may well have a claim in terms of money for housing but she wont have a 'claim' on remaining in the house no matter how many people want to believe that. The dad might have the means to agree that however, you never know and then she could stay.

bellac11 · 20/08/2022 23:52

I mean for housing the children, not for her.

averageavocado · 21/08/2022 07:09

Justkidding55 · 20/08/2022 19:19

You actually do have rights as you were a common law couple and you have kids. However I think morally it’s wrong to take his house.

Bloody hell!!!!

Do you actually believe this??????

Quincythequince · 21/08/2022 07:12

BambinoBlue · 20/08/2022 12:54

Is he on the birth certificates?

If so, he very much does have rights.

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This! Is he named?

ReneBumsWombats · 21/08/2022 07:14

A lot of people do still believe common law marriage exists. Maybe it should, but it doesn't.

I think a Government educational campaign on the issue is not a bad idea because the misinformation is widespread.

LemonTT · 21/08/2022 07:46

bellac11 · 20/08/2022 23:49

OP hasnt been back, and I suspect this was a made up thread anyway

So, although she says she is a stay a home parent, it does not equate to her being their main carer, without more detail its impossible to say

Theres also nothing to say, that if she is their current main carer, she needs to remain so. Its not good practice to change a main carer if there arent any issues with that main carer but thats an assumption made.

But as I say, no clarification either way to many of the points made in the thread so none of us are any the wiser.

She may well have a claim in terms of money for housing but she wont have a 'claim' on remaining in the house no matter how many people want to believe that. The dad might have the means to agree that however, you never know and then she could stay.

As the family lawyer explained to you, she can apply to the courts to remain in the house as the primary carer.

The question is whether there is a legal route for her to stay in the house. The answer is yes, but it is dependent on circumstances. The needs of the children are protected legally whether their parents are married or not.

prh47bridge · 21/08/2022 09:25

bellac11 · 20/08/2022 23:49

OP hasnt been back, and I suspect this was a made up thread anyway

So, although she says she is a stay a home parent, it does not equate to her being their main carer, without more detail its impossible to say

Theres also nothing to say, that if she is their current main carer, she needs to remain so. Its not good practice to change a main carer if there arent any issues with that main carer but thats an assumption made.

But as I say, no clarification either way to many of the points made in the thread so none of us are any the wiser.

She may well have a claim in terms of money for housing but she wont have a 'claim' on remaining in the house no matter how many people want to believe that. The dad might have the means to agree that however, you never know and then she could stay.

I have referred you to the relevant legislation - Schedule 1 of the Children Act 1989 and the Trustees of Land and Appointment of Trustees Act 1996 (TOLATA). Schedule 1 of the Children Act specifically gives the courts the power to meet the housing needs of a child by transferring a property to a parent until the child is an adult - paragraph 1(2)(e).

These pieces of legislation are used by unmarried mothers (and occasionally unmarried fathers) to remain in the house owned by their partner after the relationship has broken down.

Your insistence that the OP does not have a claim to remain in the house is simply wrong. It is impossible to say whether such a claim would succeed, but such claims are possible and some do succeed.

Still don't believe me? Take a look at www.weightmans.com/insights/what-is-schedule-1-children-act-1989-your-questions-answered/ and the paragraph "What is a transfer or settlement of property". Many other solicitors have similar statements on their websites.

notanothertakeaway · 21/08/2022 10:06

I dont see how anyone can advise OP, when they haven't said which country they live in .....

Soontobe60 · 21/08/2022 11:19

TooTrusting · 20/08/2022 16:43

Many wildly inaccurate statements on here.
Family Law solicitor here.
OP this is the law in England/Wales:

  1. You have claims under Schedule 1 of the Children Act.
  1. Those claims are to capital (for housing/furniture/car etc) and possibly to maintenance.
  1. Whilst you can make a capital claim straight away, to make a maintenance claim you need a maximum CMS assessment.
  1. You will get a max assessment if XP earns over £158k gross pa. If he doesn't but is sufficiently asset rich then if you pursue all the appeals then you will eventually get one.
You have to be determined - the process can take a long time. In my experience (personal as well as professional) the CMS is not fit for purpose.
  1. Once you have the max CMS assessment the court has jurisdiction under Schedule 1 to deal with topping up what the CMS has awarded you. This can include some money for your own expenses while DC are young which we call "the carer's allowance").
  1. Schedule 1 applications are not the preserve of the super wealthy but it is shocking how many family solicitors and barristers either don't know such claims exist, or how to pursue them properly. I practiced in London for 15 years on "big money" cases and in Wales for 13 years on a mix of small, medium and big money cases.
Not one solicitor round here that I have dealt with - even the ones who are considered top of their field - has any real knowledge of this area of the law. So make sure you use a solicitor and a barrister who does.
  1. Now the house. You may have a claim to his property if you have made contributions to it. If you were engaged then you may have other types of claims as well or instead. These claims allow you to assert a right to remain in the house while you pursue them.
This area of the law is very subtle and fact-specific and you again need a solicitor with experience.
  1. Under Schedule 1 you can make applications for interim capital and interim maintenance once you have that max assessment. Interim applications can include money for your legal fees.
So if you don't have rights to the house and therefore no right to remain living there you can apply for an interim order for eg rent/a deposit. Where there is a genuine claim and if I was advising someone in your XP's position I would advise him strongly against chucking you out and if he was determined I would tell him he had to assist in providing alternative accommodation (obviously this would depend on affordability).
  1. What you will get from these claims obviously depends on his wealth and on the specific facts.
  1. If he is on DCs birth certificates then he has equal rights and responsibilities (PR). The courts are moving towards 50/50 but again this is fact specific and depends on things like their ages, their wishes, his past involvement, his working hours. Many fathers will go for 50% to try and reduce their CMS liability. You can still try and claim and the CMS will look at things like not just how many nights they spend with each of you but days as well.

Perhaps you could give a ball park figure of how much o in terms of legal fees this is likely to cost? Because a single parent with no savings or income might just not be able to afford it!

prh47bridge · 21/08/2022 12:53

Soontobe60 · 21/08/2022 11:19

Perhaps you could give a ball park figure of how much o in terms of legal fees this is likely to cost? Because a single parent with no savings or income might just not be able to afford it!

Show quote history

If OP is at risk of homelessness she may be able to get legal aid. She may be able to get low cost advice from a law centre. She can, of course, represent herself. In some situations, she would be able to get the court to order her ex to pay her legal fees - not something the courts do routinely but they do make such orders in some cases.

Johnnysgirl · 21/08/2022 13:06

prh47bridge · 21/08/2022 12:53

If OP is at risk of homelessness she may be able to get legal aid. She may be able to get low cost advice from a law centre. She can, of course, represent herself. In some situations, she would be able to get the court to order her ex to pay her legal fees - not something the courts do routinely but they do make such orders in some cases.

Show quote history

Even if she's chosen to leave herself?

oviraptor21 · 21/08/2022 14:35

It does seem wholly unsatisfactory that if there is no domestic abuse involved, a (historically) sahm has little to no chance of being able to leave a dead relationship with her children unless she can source some cash to (a) find alternative accommodation suitable for her and children and/or (b) access legal help.

Sparklypant · 21/08/2022 14:44

oviraptor21 · 21/08/2022 14:35

It does seem wholly unsatisfactory that if there is no domestic abuse involved, a (historically) sahm has little to no chance of being able to leave a dead relationship with her children unless she can source some cash to (a) find alternative accommodation suitable for her and children and/or (b) access legal help.

Or you know. Get a job. Of course they can leave.

oviraptor21 · 21/08/2022 14:45

Easier said than done. Unsupportive husband. Cost of childcare more than earnings. Etc.

Johnnysgirl · 21/08/2022 14:47

oviraptor21 · 21/08/2022 14:35

It does seem wholly unsatisfactory that if there is no domestic abuse involved, a (historically) sahm has little to no chance of being able to leave a dead relationship with her children unless she can source some cash to (a) find alternative accommodation suitable for her and children and/or (b) access legal help.

Who is the onus on to fund a situation like this, then? If she wants to leave and find alternative accommodation she has no means to fund herself?
Is she completely without agency, this hypothetical woman?

prh47bridge · 21/08/2022 15:05

Johnnysgirl · 21/08/2022 13:06

Even if she's chosen to leave herself?

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Yes

BigChesterDraws · 21/08/2022 15:13

This is when people start to realise that marriage is more than “just a bit of paper”.

oviraptor21 · 21/08/2022 16:04

Johnnysgirl · 21/08/2022 14:47

Who is the onus on to fund a situation like this, then? If she wants to leave and find alternative accommodation she has no means to fund herself?
Is she completely without agency, this hypothetical woman?

Show quote history

Legal aid/benefits/child maintenance until she can get back on her feet and back into work. It's just not possible for low paid or unemployed mothers to put the cart (work and childcare) before the horse (getting out, finding accommodation).

Johnnysgirl · 21/08/2022 17:22

It's just not possible for low paid or unemployed mothers to put the cart (work and childcare) before the horse (getting out, finding accommodation).
Why not? What actually changes and when?

RunningSME · 21/08/2022 21:34

oviraptor21 · 21/08/2022 16:04

Legal aid/benefits/child maintenance until she can get back on her feet and back into work. It's just not possible for low paid or unemployed mothers to put the cart (work and childcare) before the horse (getting out, finding accommodation).

Show quote history

You know that you don’t get Legal Aid any more for divorce without DV and you never for it for the financial aspect.

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