Right to stay in the family home when children have SEN?

[Justasmallpiece]

I will be divorcing my husband after around 16 years of marriage. We have a mortgage on the family home together and have 3 kids with SEN - two diagnosed and with EHCPs, one undergoing diagnosis, at two different schools. He is the higher earner.

Having to leave the house they've lived in since birth would have an extremely negative impact on each of the kids, as well as causing issues regarding transport to their named schools and so on, and they each need their own bedrooms for space from each others' triggering behaviour, so practically I would be unable to afford a big enough house to rent on my own if we had to sell up.

Are there any special considerations given to the needs of children with SEN in these kinds of scenario which would mean they and I could stay in the family home until they reach adulthood/are independent? Or would we be expected to sell the house regardless? (If so then I likely can't proceed with the separation as it would be too traumatic for them to move unfortunately.)

Consideration can be given for SEN but as with most things, it will come down to finances ultimately and you haven’t given any information on that.

• How much do you both earn?

• How much equity is in the house?

• Can you afford to buy him out?

• Can you afford to pay the mortgage and bills on your own? (With child maintenance)

• How much do you have in savings and pensions? Are there any other assets you can offset against the house?

You say he’s the higher earner (between the two of you) but it’s important to know if he’s a “high” earner or not.

In that situation unless there is abuse I think I would stay living together until finances allow you to buy him out. Unless he can afford to and is willing to move out and you can then afford the house alone.

Thanks for you replies. In terms of finances, yes he is a 'high earner' of around £80k (if including bonuses) to my £43k. I will receive DLA for one child for at least the next 3 years before switching to PIP etc, and have applied for DLA for second child. Both have pensions and he has taken a large cash draw down on one for around 90k.

Recently remortgaged for building work but there is at least around £200k equity, likely more actually, as bought the house before prices increased.

I couldn't afford to buy him out as far as I'm aware but I could probably cover bills and mortgage payments on my own with maintenance providing I could remortgage to a longer term (is only about 8 years at the moment), which could approximately half the currently monthly payment, interest rates depending of course ...

Do you have any sense of how reasonable he's likely to be? If he'll be at all willing to put the DC needs above wanting his share of that equity? I'd have thought he could push for the house to be sold and proceeds split as he'll have to provide a home for the DC too when he has them, so to deviate from that would likely mean the two of you having a more amicable arrangement. Some couples even nest, keeping the DC in the home and moving in and out themselves to share the care, but again that's very much dependent on the relationship. Your best move is of course to get legal advice on your specific situation then you'll know what's possible.

How old are the children?

You could possibly argue to stay in the house until the children are 18 (IF he is agreeable), with you covering the mortgage. You would be required at that stage to either sell and split the equity or buy him out though.

How old are your DC?

Would you consider a nesting arrangement? Or could you move out and the DC stay in the house with your DH?

This is only going to be an option if he has the finances to also get himself a house where you live.

You both have a need and a right to live somewhere ideally big enough for the children to stay.

It clearly isn't going to happen if you staying in the family house means he has to live in a cardboard box.

Are your children expected to become independent? As I think you are more likely to be able to sort it to stay until they leave school due to transport if after that they will live independently.
If they are expected to live with you indefinitely then it might be better to make the move earlier rather than have it hanging over you all causing anxiety.

When I saw a solicitor he said the Sen may be taken into account (dc were undiagnosed at that stage) but both parents would expect to have enough for two houses for the dc to live in. In my case my ex was on quite a bit more than £80k so could afford to buy a flat without me moving out. And he had the dc about one night a fortnight at that point too. You should see a solicitor but you do need to be realistic that both of you need to live somewhere and you might not have enough savings to do that.

How old are the children and will there be enough equity to house you both appropriately as he will also need to ensure the set up is suitable for the kids needs.

If the split is amicable you might be best off agreeing between you a way to stay temporarily.

So going on your numbers. It's great that you can afford it on your own- but, it will mean that you are keeping his £100k half of the equity until your last child leaves. Does keeping that mean he can't get a house? If he still has savings for a deposit, he has a great salary for a mortgage, but depends where you live, then having a mesher order on the house might be doable. If it's not doable yet as between the two of you you don't have an additional £30k savings, or whatever he needs for a house, then you can work towards that.

I wouldn’t class 80k as a high earner, especially as you’re including a bonus which may not be awarded. If you are also the one claiming child benefit, and potentially DLA x2, this will boost your income which is positive. However, I don’t think courts would require you to stay in the family home if it meant your husband wouldn’t be adequately housed. Unless you are planning to have the kids 7 days per week and they won’t stay with their dad at all, you’ll likely need to sell up or, as others have suggested, nest. This would probably be a much better option for the kids. Could you afford for you both to either buy or rent a 1 bed flat for you to alternate living in?

He’s not a higher earner if he’s on 80k which includes bonus. Might be higher than you granted but in the eyes of divorce it’s not especially with your own income.

can you afford all the mortgage and bills on your own ?

with the amount of equity you think there is my view is you’d be expected to sell, even with sen,l. But you might argue for higher share of capital. Are there other assets, pensions?

Sen generally won't be a factor in keeping the home unless it's been heavily adapted and even then it would be time limited. For this he's not a high earner because he'll need the equity to buy.

If you can afford all the bills the best you can expect is a bit longer to find somewhere.

As upsetting as it is to uproot children in your head, children move all the time even with sen.

As pp have said, the issue with you wanting to keep the house for your own convenience as the children have sen, is that he is also going to need a house that caters for their needs/ability to get to school. That will be taken into consideration

Honestly op. Unlikely really unless he agrees. The courts will assume that both of ye will need a house that can accommodate your kids for when you have them.