Right to return to marital home with children

[meld96]

Hi. I'm a new member to the site and wondered if anyone had any experience of or could advise on the following situation. I left my husband in May this year after he threatened me with throwing my stuff out and forcing me to leave the family home. I decided to take my stuff and the children's things (they're 6 and 9) and go and stay with my Mum as I was scared of what would happen if I decided to stay with my Ex. I started divorce proceedings which he is contesting, I tried to get the children to see him and he instead used it as a chance to argue with me and emotionally blackmail them - they have stopped wanting to see him. He is taking me to court for child arrangements and we've had a fact finding hearing - the court found in my favour and as FACT that he had emotionally abused me, used coercive control and physical intimidation against me and to a lesser extent our children. I have tried every which way since May to get a home sorted for me and the children as living squished in at my Mum's with her and her fella is becoming untenable and putting a lot of strain on all our relationships. Im actually becoming pretty depressed at being unable to sort out any kind of housing and for having to go through so many court proceedings as my Ex is incapable of sitting down and discussing things rationally and putting the needs of the children first. After nearly 5 months of separation would I have any right whatsoever to return me and the children to the family home (joint mortgage and payments are up to date) and request that he leaves and rents somewhere locally. He is away for work a lot and hardly uses the house. The children really need to be back near their schools, friends and family and to have separate bedrooms again as sharing is causing major upsets. If it was just for me I wouldn't even bother fighting for the house but it affects the children too and I just cannot see how the logical solution isn't to let the children (and me) have their home back and for him to let me contribute financially to providing that for them whilst he finds smaller, less expensive accommodation nearby and then tries to rebuild his relationship with them slowly and carefully instead of forcing me through court to force them to see him when they don't want to as yet. Really confused and depressed about my options and rights and how to go about getting the children their home back. Any advice greatly appreciated. Thank You. ps. I've had 15+ years of him emotionally abusing me and convincing me I have no rights should I ever dare leave him so finding it hard to stand up to him and convince myself I do have a right to a home for the children.

No idea. Bumping for traffic. Good luck op

Do you have a solicitor?
You shouldn't divorce a man like this without one.

Assuming you don't have a solicitor, I suggest you start by calling the free Rights of Women family law helpline. Then contact your local CAB and ask for a solicitors list. There may be solicitors who offer a free initial consultation and/or fixed fee.

Have you been in contact with Women's Aid at all? They can offer support and might be able to refer you for specialist, low cost legal advice.

Thanks all. I have a solicitor but struggling to afford it all. I only qualify for legal help not public funded legal aid so ending up representing myself in a lot of it. Womens Aid have been great so far but only in so much as supporting me and the children emotionally - they cant actually advise me legally. Social housing is proving incredibly slow to come up or obtain, I can't rent as currently on benefits and dont have a guarantor and my Ex is trying his best to prove 'parental alienation' and says he will go for full custody of the children especially as their current living circumstances aren't great and he is still in the 3 bed family home. Am so close to giving up and going back as all that he told me would happen should I ever leave him is happening and I can't seem to stop it. I left because of his behaviour and abuse but he is managing to minimise it and make out I'm exaggerating whilst holding over me the fact that he can stay in the house, change the locks and keep me out unless I agree to go back to him.

As I understand it, yes, you have every right to return to the home that you jointly own with your STBXH, and to ask him to leave, but that's all you can do (ask). You can't force him to go.

I have no idea about the legal aspects I'm afraid but going back to the home with him in it sounds like a really really bad idea for you and your children from what you've said about him, however cramped the arrangements are currently. I am sure there must be other solutions although they won't be sorted immediately. Is there much equity in the joint house? I think you need to find out what would happen if you divorce - would the house be sold and proceeds split equally? I have no idea how that works but if you find out that you will be entitled to something when you divorce perhaps that will give you something to aim for rather than feeling like your current situation is forever?

It doesn't sound like you will have much luck asking him nicely to leave from your description of his behaviour so far - I wouldn't believe him if he suggests you move back and then he'll leave afterwards.

Whatever you do, don't go back to him!
I know solicitors are expensive but (provided you have a good one who doesn't rip you off) they are worth every penny. I suggest you beg, borrow or steal in order to get the divorce, financial settlement (including who gets the house) and child contact arrangements all sorted ASAP.
Has your solicitor raised the possibility of an occupation order? If not why don't you ask them about it. And/or call Rights of Women to ask. I think that could be a good option in your case (but I'm not a solicitor so get advice on it). There is information about occupation orders at rightsofwomen.org.uk/get-information/violence-against-women-and-international-law/domestic-violence-injunctions/#An%20occupation%20order

How are your finances at the moment? Do you work? Are you able to live rent-free at your mum's or has she asked for a contribution? Is your STBXH paying all the mortgage and bills for the family home?

Family solicitor

Yes you can move back, but I think that would be incredibly hard on the kids.

You can apply for an occupation order, relying on the findings against him, and the impact on the kids of being kept out of their home. The court willmake an order excluding him if satisfied that you and kids will suffer significant harm if it doesn't.

Not guaranteed to work, but if you explain the effect of crowding, the school commute the kids are doing etc, it may work. How are the kids coping?

Thank you. I'll try give Rights for Women a call asap. My solicitor did suggest an occupation order but thinks that cos it's been more than 4 months I'll struggle to convince a judge we now need the house. I should have stood my ground and told him to leave when he threatened to throw my stuff out etc but I was too scared of what he'd do if I did so I left instead. The kids are doing ok but struggling with lack of space, lack of privacy, lack of sleep (my son has medical needs that can causes disturbance through the night) and lack of having their own 'home' when they loved the house they were in and where it was. They're also struggling being parented by me but then given contradictory messages by my mum and her fella as to their behaviour so it's all getting very strained and stressful. My mum also gets up at 6am every day for work and this disturbs my daughter too so she's doubly tired and it's affecting her wanting to get up and go to school. Legally my solicitor at first wanted to just try and get the house sold and split the equity (we'd only get about £5k each I should think) but that's not going to help me get a home so it now seems silly to force a sale when we could afford to keep it on for the kids if we sort the finances out properly. He won't even entertain the thought of us moving back in unless it's with him though. I don't know what the likely success of an occupation order is once you've actually left the home? My mum isn't charging me rent at the moment and I'm claiming the benefits I can to keep us going but if we stay much longer I will need to start paying rent and if he drags everything through court (like he promised he would) I'm going to be totally broke. The kids are just desperate to be back in their home and back in the village near their schools and friends. Sorry for waffling. Just feeling really guilty that I didn't stand my ground-stay in the house and then find a way to get him to leave.

Well it sounds like you need to give it a shot. There are no guarantees but I don't see that the delay is a problem if you just explain it like you did here. Letter from the GP might be helpful. You can rely on the findings in the children's case, you need to explain in your statement what the living arrangements are, everything you said here.

Here's a link to the relevant legislation

www.legislation.gov.uk/ukpga/1996/27/section/33

I feel for you, OP. I understand why you feel guilty but please try not to. It's very, very difficult to stand up to an abusive man, and pretty much impossible to force him to do something he doesn't want to do. It sounds as if he was physically aggressive/ threatening so he could well have turned violent. Yes, you could have risked that happening, then called the police and hoped they arrived in time to arrest him before he did too much damage. But you were probably wise to remove yourself and your children from the situation, as you kept everyone safe.

If you wouldn't be able to stay in the house and pay the mortgage without a financial contribution, it may be sensible to do as your solicitor suggests, just sell it and split the proceeds. As a single mum with two children and no secure home, you would be reasonably high priority for social (council/HA) housing.

Just to check - are you getting Child Benefit and Child Tax Credits?

And don't feel guilty! Sounds like he's a really nasty piece of work, and he's had years of hammering away at your will and self esteem. If tackling abusers was easy, Women's Aid wouldn't be there. And I might have had to do conveyancing or such for a living.

(without a financial contribution from him, I mean)

Thank you. I've just had a read of the link and it does make sense that the kids should be allowed back in their home if I could get a successful application. It just seems so wrong way round that he's able to change the locks and keep the house - even though it's empty most of the week and then doesn't give a hoot what effect the current living arrangements are having on the children. He stated months ago to a family member that if I left with the kids there'd be no way he would put a roof over my head and he couldn't be forced to. He's also threatened to default on the mortgage several times if I don't cancel the CMS claim. The only thing that worries me about applying for an occupation order is the cost as apparently it's £3k and if not successful I could be liable for his costs too!? This is why I think it might just be easier to move back in and give up on all this cos I don't think I can actually do anything else now to sort the situation out and all this court stuff is so stressful and scary (we have a divorce hearing early Nov cos he refuses to just let that go through too!)

Yes I'm getting child benefit and tax credits and currently income support too but though we're on the social/council housing list - 3 bed houses aren't coming up very often and people having been waiting up to 2 years for one! Women's Aid and Citizens advice have been fantastic support - women's aid came to court with me as I couldn't afford the solicitor. The CMS have also been great but I've cancelled the claim now just to try ensure he doesn't default on the mortgage and leave me with the debt. If he allowed me to contribute to the mortgage - (he has old fashioned views on making sure his name and his bank account pay for everything paying no matter how broke he is) he could afford to rent somewhere local and we could keep the house going for the kids until they're older but he wants to 'punish' me for daring to leave and now can't see the wood for the trees in that it's the best option for the children. I've always told him I'd happily live in a cardboard box and eat toast constantly but I need a secure and suitable home for the children and that's what he should be aiming to help provide rather than trying to completely destroy me emotionally and financially by all he's putting us through. I left him because of his aggressive behaviour, constant put downs, constant accusations of affairs (I've never had one) constant swearing in front of the kids and other such horrible language, his total lack of involvement in our lives especially our son's and his use of his medical condition as something to excuse a lot of his poor behaviour with. He has restrained me, raised his fist to me, blocked exits and held me against walls before but he doesn't see any of this as a problem and jut totally denies it. The only reason he can see that I left him is to surely be with someone else as there's no other possible reason!!! Argh...and breathe!!

It sounds like you've made huge amounts of progress already. Both with the divorce and applying for housing etc. He's making you fight every step of the way, but you ARE doing the right thing in divorcing the bastard.

FWIW I think you should reopen that CSA and let him default on the mortgage, although it could be an empty threat, as it would make him homeless and not you!

Thank you. I think I've just hit a total brick wall and I'm exhausted and just want to take the children back to their home that we loved living in so much (when he was away for work) They ask every day/night when we're going to go back and it's so upsetting to have to say i don't think we can and that I don't know why their daddy won't let us live there. Even they've asked why he can't move out as he's never there any way - they're not daft and have better logic than he does! I could only just about afford to keep the house if he didn't make a financial contribution in any way but surely if it's his children's future security and well-being he'd want to be putting that first?! I think an occupation order can state who's going to pay for what too regarding house/bills etc. I don't want him blaming me for him defaulting on the mortgage which is why I e cancelled the CMS claim. He's very good at apportioning blame to everyone else around him for everything that happens to him and I don't want to give him any ammunition. I can cover my outgoings for now on the benefits and I'd rather not have the mortgage lender phoning me demanding payments he's missed. (It's a joint mortgage so they can demand payment from me) Just feel Stuck! Stuck! Stuck! My doctor has said I'm clearly depressed and suffering from anxiety and stress due to the situation but I also don't want that being used against me as ex has said he can use it to prove I'm an unfit mother when he goes for custody of the kids 😞

He can't use it against you love, he can try but he won't succeed. There is enough evidence of his abuse that a judge ruled in your favour, even without legal representation. So you're doing a damn good job so far. My advice is to look after yourself and hang on in there. Also try to stop worrying about what he says, thinks or threatens. And definitely stop worrying about giving him "ammunition". The law is on your side, just go ahead to secure the things you're entitled to (including child support and hopefully your home!) and he will have to suck it up.

I hope you're keeping communications to an absolute minimum? Letter or email only? No long phone calls or text messages? I can just imagine him bombarding and manipulating you... You need to be strong about deleting and ignoring his messages and calls.

He can and will use it against me 😞 he's already told me if I hadn't hidden my depression on other occasions in the past and sought help when he told me too then none of this would be happening and therefore it's all my fault. (I've had depression on and off when he's had really bad medical problems that have directly affected me and also when our son was diagnosed with type 1 diabetes) but I've always picked myself up, dusted myself off and carried on with life thinking that staying with him was the best option for the kids. He's going to use our living situation against me too (he hates that the kids get on so well with my mum's partner) and he's claiming parental alienation as doesn't see that there was any reason before we left as to why the kids wouldn't like being around him (son actually called him a bully on a regular basis and kept asking for a kinder daddy) Really hurt and frustrated with his lack of empathy about what all this is doing to the children but then is dragging me through court for access to them trying to pretend he's a loving caring guy who 'just wants to see his kids' He's spent close to £4K so far on solicitor/court fees and then cried in court that he couldn't afford an x-box for son's birthday present. I actually can't function properly when I start thinking of all he's done and said and what he's still doing! He's tried all the threats and accusations he can via email and texts so I have stopped communicating as much as possible. He keeps contact the kids by their iPods and email though and then claims I'm controlling them when I block him on their devices too (he even asked our son why our daughter doesn't love him any more!!) I really don't want to ever live with him again but if it's the only way to get back the children's home and get them back where they want to be I've started thinking it's an option I might have to take. (And then get a job and save like hell to try and escape with more options next time around) My kids are what's keeping me going but they're also what he's using as a means to hurt me. Thanks so much for your help and advice so far. I do appreciate it.

Oh love. He is abusive, 99% of what he says is complete fucking bullshit, especially his accusations and blame towards you. None of this is your fault. Unfortunately it pretty much goes without saying than an abuser will never admit that they are wrong or at fault or abusive. Of course, you know he is, the people from WA and CAB know he is, the judge who ruled against him knows he is, your children even know he is, to an extent. But he doesn't know it and he'll never admit it.

Have you read "Why does he do that?" by Lundy Bancroft? Have you had any counselling? I suggest you do both if you haven't yet done so.

WHATEVER YOU DO PLEASE PLEASE PLEASE DON'T GIVE IN AND MOVE BACK IN WITH HIM.

You and your children are honestly better off squashed in at your mum's and living off baked bloody beans than moving back in with him.

Is the 3k for solicitor fees? Applications for occupation orders are free, and it would be very unlikely that costs would be awarded. Generally that doesn't happen in family courts.

Occupation orders are only temporary however, so you'd need to make more permanent arrangements such as a meshers order under the children's act. You need legal advice for this, try Coram Children's Legal Centre (free advice) as your starting point. Good luck.

I've heard of that book so will try remember to get a copy. I'm
Meant to be going on the freedom programme run by women's aid but it's not till January. The kids have started their counselling. I looked into meshers orders but couldn't work out if they were usual or not or whether judges preferred to just make sure there was a total clean break between people but it would seem sensible to me to let the kids have their home if he can find it In Himself to be sensible and work out finances properly. I haven't heard of the Coram Children's legal centre so will look that up too - thank you. I think maybe the £3k was just solicitors fees then as she didn't break down the costs but she didn't say it was free. Just don't know if it would be more stress than it's worth but I feel like I at least have to try and exhaust all options open to me as the alternative is going back but that has to be the last resort.

Occupation orders are "free" to the extent that there is no Court fee payable to issue.

If you use a solicitor, and can't get legal aid, then you will have to pay the solicitor.

Your solicitor is right to advise the risk of a costs order against you if you are unsuccessful, since the rules for such applications are not the same as for other family proceedings, however, in my view, the risk is small, for these reasons:

You have findings against him of domestic abuse. The allegations were serious enough to warrant a fact finding. They included allegations, now proven, of abusive behaviour towards the children. Clearly, you and he cannot occupy the home together in a manner that protects the children.

He is in fact as I understand it excluding you from the house (locks changed). He is not allowed to do this. Even if the court won't exclude him, it should give you an order requiring him to let you back in, not interfere with your occupation further, and possibly forbidding him to use parts of the home, plus a non molestation order. This would be enough of a "win" to justify either no costs order, or him to pay your costs, imo. I don't think a judge will want to order costs aginst you, so they would be looking for justification not to.

Please remember your solicitor has to advise you defensively, so if it goes wrong you can't say you were misadvised. That's why we never give guarantees.

Can I add, though, that moving back in and giving up really isn't an option? If you do, there's a high chance you'll have social services investigating the kids' exposure to domestic abuse.

I think your options are to keep fighting from where you are, or fight to get your home back.