Schedule 1, Children's Act

[nextweekfriday]

Has anyone experience of using schedule 1, from the children's act to negotiate with your ex partner re sharing property?

I'm wanting to buy my partner out of the house we're in, offering 50% of the equity, absorbing 30k of his personal debt which is already on the mortgage.

He is reluctant as he's put a lot of work into the house (which we've both shared the cost of). I'd like to use the schedule 1 of the children's act to explain that if it went to court it is more likely to fall in my favour as the mother but also because I'm offering a fair offer for him to regime himself.

Does anyone have experience of doing similar?

Schedule 1 Children Act only allows for financial orders to benefit the child. It’s not like ancillary relief in divorce where the orders can benefit one of the adults. This means that if a property is transferred to one parent then the other parent would normally receive their share back when the child reaches 18 or finishes full time education. I’m not sure it will therefore necessarily help you achieve what you want to in this case- although it might as you could suggest you might apply as a bargaining tool and I guess it might be helpful if he’d rather have a lump sum now than wait or risk expensive court proceedings.

How do you hold the property today ?
joint tenants or tenants in common ( with equal or unequal shares )?
that’s they key piece here. As that is what you’re each due will come down to that
you’re not likely to be awarded more or it fall in you’re favour being a mother

if you’re offer to buy out equals his legal share then it’s likely to be permitted

Yes we're joint tenants.

So regardless of who paid what you are both owed 50% of any equity

Yes I understand that and I'm prepared to pay him half of the equity in the house.

If you can raise the funds for his half, secure a mortgage in your name, then it’s unlikely you’d be forced to sell
can he also do the same?

I have half the equity in cash to give him. I can raise a mortgage with my brother and I for a joint mortgage that will cover the what's currently owed. He can pay half the mortgage and would need to borrow cash from his mother for the remainder which he would need to negotiate with her agree to.

One of us is going to have to agree to let the other one buy each other out. What I'm trying to determine is whether there is anything in the schedule 1 of the children's act that would force a decision either way.

Right so you’re able to pay him what should be the full amount of his share it’s just that he wants to stay in the property and have you leave. Is it agreed that your child(ren) will live with you rather than him? If so then you may be able to use schedule 1. If not then you may have to apply for a s8 order that they should live with you before you boils use Sch. 1. Obviously best to keep it out of court if you can in any case. Would you try mediation?

Yes at the moment he wants to stay. We have one child and will she live equally between us both. So 50% of the time with him 50% with me. I'm just trying to get a sense in these situations is there anything by law that can force it one way of the other. If we went to court they'd have to make a decision. We are unlikely to take it to court but I'd like to use some legalities as a way of negotiating with him eg it will cost a lot and one of us will still have to leave the house.

Unfortunately not, especially given you wish to split your care 50/50. Potentially, if your child was with you a larger portion of the time, a judge may sway, but ultimately it's about both parties having their housing needs met and the needs of the child met. That doesn't necessarily mean, in the former marital home. If there is such a stand off, and you can't reach an agreement with your ex as to which of you remain in the property, a judge may order it be sold.

What’s so important about this house ?
yiu could end up both losing out if you waste thousands on legal fees

why is it so important that one of you retains it?

if you have child equally you have no stronger claim to remain over him. Being a mother does not give you higher status

We're unlikely to take it to court we'll have to find a way of agreeing one way or the other. I was trying to see if there was something legally that could sway the decision one way or the other - it sounds like all the court would do is force a sale of there was a stalemate.

Yes I think that’s right. I don’t think Schedule 1 will help if there’s 50/50 shared care and you’d be looking at a sale and equal split if you can’t agree. Maybe try mediation. One of you might decide it’s preferable to back down and let the other keep the house and buy them out so your child doesn’t have so much upheaval.

Not in the circumstances you describe. The act applies in circumstances where you wouldn’t be able to house your children and you obviously can. It would probably back fire as the court would only consider your case if you stated you couldn’t afford to stay in that home. So why not sell it and rent, if you have enough income or capital for rent.

You are going to have to pursue your property under Tolata (Trusts of Land and Appointment of Trustees Act 1996) this can run alongside Schedule 1 if needed. Tolata is a complex piece of law but they have the power to force the sale of the property.