Mediation - House Sale and Custody

[AnonymousFish10]

My ex-partner (not married) and I are separating. She wants to remain in the home together and coparent that way - I don’t want to do this. I want us to sell our joint-tenant-ly owned home and provide two stable and calm homes for our two children (two under two). In the event that I move out she is refusing to allow me shared custody (I am a very hands-on father, do my fair share parent - as an example, I do the night shift with our 6 month old every night).

She is refusing to engage with mediation currently. I’ve signed up for a MIAM in two weeks time in the hopes she will change her mind.

My question is - if we end up going to court, which I want to avoid, is it likely that she might win a stay of the sale order until kids are 18? And what would the legal costs look like? Could she be forced to pay my fees (or vice versa)? I don’t have thousands lying around sadly. And I imagine the timeline I’m looking at is months and months maybe even next year?

No one can say for certain op but as you're not married the likelihood of her getting a mesher order is virtually none. They're vanishingly rare in married splits now, let alone unmarried. As far as childcare, it's possible you'd be awarded 50/50 shared care, but you need to consider how you'll make that work. You need to suggest a share arrangement, taking into account that any childcare or child illness on your days are entirely yours to cover. No she won't have to pay your legal costs, you'll each be liable for your own. Can't suggest how much it'll cost, but it won't be cheap if she doesn't engage.

I’d have to factor certain things in but I would make it work because I want to continue to be hands-on and I want as much time with my kids as possible.

As for the legal fees - how much of this could I do myself? I’m quite adept at learning stuff but I don’t know how much I’d be screwing myself if I did.

You aren’t married, therefore your EX partner doesn’t get married rights.

The home - I completely understand you not wanting to continue to live there. How does she think this will work in practice when you both get new partners?

If she is already threatening to stop contact (she’s using the children as weapons to get her own way / control you). You can apply to the court for a child arrangement order (CAO). You can represent yourself. Do this asap to stop her threatening you.

She won’t get a ‘Mesher Order’ (a deferred sale). You aren’t married, therefore she doesn’t have the same rights as a married women. Even if you were - there wouldn’t be a hope in hell that she would get one for 16 years.

If she refuses to sell your jointly owned home - then you can take this to court and a judge will force the sale. You can ask for your costs to be awarded but it’s rare that they are.

Good luck 🤞

My dh has been going through courts for a force of sale and it's cost him around £4000 so far.

Thank you for taking the time to reply! I’m not sure she’s thinking that far ahead about the home tbh. I can’t speak to her thoughts on that matter as I don’t understand it!

Should I do the CAO before/after/during the filing the Tolata claim?

Have you thought about 'nesting'? Whereby you buy or rent a flat together and whoever's turn it is to have the DC stays in the house with them and the other parent stays in the flat. Could be one week about or 3/4 days a week. Means the DC stay in their home and the parents nest in and out. Obviously this would take a lot of cooperation on both sides.

I have thought about this but the issue is that this stops both of us from moving on at some point. But yes that would be best for the DC.

Personally I would start the CAO now. If your EX is already threatening to stop contact (absolutely disgusting behaviour) then I would get the ball rolling on child contact so she can’t mess you around. You can represent yourself to keep costs down.

My now DH who was married agreed (as did the EW) to a 4 year Mesher Order as part of his divorce finances. When the 4 years were up - his EW refused to discuss the sale or sell the house. He took it back to court. The cost of the solicitor & barrister was circa £2k. From court application to the house being told it took 6 months (the judge signed all paperwork in the EW’s behalf).

Yes definitely stand up now. It will get much harder to change things once the controlling ex settles into a status quo not of your choosing. Don’t put anything off for when the kids are x age or she may have calmed down. It may be painful with backlash from ex of all sorts of nonsense but please do it now for your peace of mind and kids’ stability.

Like the PP’s DH my DP conceded a temporary period of global maintenance as the exw’s main reason for being scary and controlling appeared to be money. The money is up in a year and because she’s become used to being comfortably off she’s causing all sorts of trouble and pain to try and persuade him to maintain the status quo, which he can’t afford.

As with PP, DP exw has refused to discuss matters at all so he’s spending again on lawyers. Has agreed to attend one mediation session but I expect only because was criticised by a judge for refusing mediation in the past.

This has been going on for more than half of his younger child’s life.

Also DP did not formalise the parenting plan initially and while he ‘gets’ 50-50 now this is at exw’s discretion and she makes all parenting decisions unilaterally. Taking the 50/50 ‘away’ is being threatened now too, somewhat covertly.

No one should have to live like this. Least of all those of us who come along later as partners. DP’s relationship with me is often hanging by a thread because we can’t cope with exw maneuvres. Pls do as much as you can now to make future you happy and well. I know it’s seriously hard and wish you the best of luck.

Based on the age of the dc a clean break financially will be awarded, you aren't married so it's just joint assets 50/50 typically. If you ask for 50/50 custody you are likely to get it if everything is as you say. You can represent yourself, in these situations a hot shot lawyer would not look good on you anyway

Just to be transparent, she’s not threatening to stop all contact. She’s saying that she expects the children to sleep at her place every night and I can have them during the day. I said that’s unacceptable and she’s saying okay, we’ll have to settle in court then.

I’m now in a position where I'm having to write a diary of everything I do and prove how involves of a father I am. It sucks.

Thank you for your response. Why do you think I’d be likely awarded 50/50 custody? Things that I think work in my favour are:

1 - I’m super hands-on, I do all the stuff that parenting requires a parent to do (feeding, changing nappies, clothes, bath time, sleep, play time, doctor and hospital visits etc.)
2 - I do the night shift with youngest (6 months) every night.
3 - the eldest (almost 2) is registered at my dentist (I think maybe even linked to my name somehow.
4 - the youngest is linked to my account at our GP
5 - I claim child benefits for the youngest whilst she claims it for the eldest.
6 - the youngest is not being breastfed (the eldest is on solids minus a bottle of milk at nap and sleep time) for at least 3 months now. Exclusively on formula.
7 - I drive and she does not (she is currently learning to drive)

I’m just worried, however, due to the young ages of the DC a judge/court will call for an outcome in her favour. Her plan is to stay in the family home by buying me out (or we sell, obviously). She may use that to argue that the kids will have stability and familiarity by staying with her.

@AnonymousFish10

Because courts today start off with 50/50 as the ideal. Dads who have barely been around their dc and only want 50/50 to avoid cms are pretty obvious and usually capitulate when they realise what 50/50 means whereas you seem like you get it. I know several young people that have grown up with 50/50 arrangements and had wonderful upbringings, but being amicable really helps with this.

The instinct to stay in your house is strong, even I felt like it fit a few weeks but I then realised I needed a fresh start, life is great now but at the beginning it's very daunting. Mediation really can help

Ah okay that’s helpful to know. Yeah I personally don’t understand those dads.

Yeah I think she wants to keep the house more as an investment opportunity (she comes from money) and therefore doesn’t necessarily want it to live in long term. I’m really hoping mediation works. She seems to have softened after talking to her solicitor, even offering me to give her a number for a buyout. But is continuing to hold steadfast on shared custody. I’ll be applying for a CAO, dependent on what happens at mediation stage.

So a little update for anybody who might be interested.

Since January we have both had our MIAMs and the mediator deemed us unsuitable for mediation (she wouldn't disclose the reason why beyond the fact that she's happy to consider us if we want to once we live separately). I'm pretty confident that she has also gotten legal advice on both areas of our disagreement (child arrangements and house sale)

After trying to discuss child arrangements with my ex, we've sort of hit a brick wall. She's standing firm on her position that I can see the kids during the day but they must sleep at her address. This makes me a visiting dad which I refuse to believe is in the best interests of my daughters. I've now submitted a C100 court application which is just so damn surreal.

With the house sale we have a bit more progress. I suspect she was told by her solicitor that she wouldn't really have any luck on getting a mesher order. She's opened, and stood firm at, her negotiations of 50% of what my share would be. I'm willing to negotiate as it is me who is calling the whole thing off. I think we might be able to come to an agreement on this but I'm not sure...

OP - you will, most likely get the 50/50 childcare eventually. As that is what is best for the children in the long term.
But it may not be the best for them when they are this small, and certainly not for the baby, if the mother is breastfeeding.

You seem to be in a massive hurry to get away. And fight in court for 50/50 child time.
However, if you were thinking about what is best for your kids - you’d not be in this rush. You’d start slowly with ‘living apart together.’. You’d consider nesting for at least some time to get your kids to adjust to the change in their lives.

You will need to coparent these kids for a long time still. This is not the greatest of starts.

Hi JSKU! Thanks for responding. I'm struggling to understand why 50/50 wouldn't be good for the children now? I'd understand if mum did 90% of the parenting, but that's not true here. Outside of me being at work I do as much as humanly possible (including the mental load). By the time this gets settled, we are looking at mid-2025 at the earliest by my research. Mother is not breastfeeding, and I do every night shift with the youngest. I have taken an active role in parenting, as a dad should.

I'm not necessarily in a hurry to get away but we have been trying to separate since January 2024. And I didn't want to fight in court, I wanted to sort this out between us or via mediation. Both of which didn't work. I haven't taken this step lightly, at all. And as for living apart now, that's more complicated as the house sale needs to be sorted. And I don't want to move out now, ahead of when I absolutely need to, because that wouldn't be in the best interests of my daughters. Also, my ex is not agreeable to the custody split so I'd be moving to be a visiting dad today - which is exactly what I want to avoid. Nesting is a nice idea, but again only if both parties agree to it. Which is not the situation I'm in.

If the courts rule that it's not in the best interests of the girls to split time equally than I will respect that. But I know what, as a dad, I bring to their development, growth, and nurturing.

‘Living apart together’ - is not you moving out. It is you staying in the house and co-parenting, while living alongside each other as co-patents only. Which is what she is suggesting - as this is clearly best for the really small children.

When you are saying ‘we’ have been trying to separate since Jan 2024 … you mean you wanted to leave right after making this baby?

I don’t know how to explain to you why a small baby, and a toddler under 2 may find it upsetting and really stressful to switch homes 50/50. Babies need stability - and switching houses and being separated from primary carer is the opposite of that.
Many courts do not grant overnights until the child is 3yo, and I hope you get a sane judge to preside over your case.

It is not about your wishes and protecting your rights - it is about what is truly the best for the children, and if they are mature enough to cope. Baby is clearly not mature, they can’t umderstand.

So if you ate the one who need to change your life so you can have other relationships - you need to bend over backwards to do what is best for your babies in the short term, rather than starting a misguided fight in court.
You need to put them first, not yourself.

And if that means that for a while you are the ‘visiting’ father - so be it. After all - if your visit ends with kids going to bed and start when they awake - they will have no idea. They do not care where you sleep.

There is absolutely a way to make sure you spend as much time with the kids as currently - without them changing homes while they are really small.

You don’t need to believe me - but do go and talk to paediatricians, or a psychologist, or read about early age development and secure attachments.

You will have many years of parenting these kids. And you need to learn to put them first.

It’s a shame you’ve judged me so quickly and without knowing the full story. Living apart together isn’t what she’s suggesting at all, she’s suggesting I live somewhere else while only seeing my daughters during the day time, which would effectively only be on weekends due to working 9-5 and the kids bed times. Though sure I might just be able to make it back in time for bed time during the week.

There are very clear reasons why we are separating; in an ideal world we’d stay together. But sadly that isn’t the reality. Of course babies need stability and safety. And I truly believe it is in their best interests that they have equal access to their father.

I truly hope we get a sane judge or magistrates panel to reside over our case too. I only want what’s best for my daughters. I will, as stated before, respect what is decided in court.

Also, I’m sincerely sorry that you think you’ve been able to fill the gaps here with your assumptions. You have no idea what our home life is like. I’ve purposefully left out as many feelings in my queries here because it’s not relevant. Every step I’ve ever taken has been in the best interests of my little ones.

You're entitled to judge me. And I thank you for your suggestions and advice.

Nesting or living with ex partner. Hell no I'd rather die. Once he wanted a divorce I wanted him gone. One partner will always leave the house or flat in a mess.
Luckily for me I owned my house before I met him so he wasn't entitled to any of it even though we were married. My son wasn't his.
Always better to have a clean break. Neither of you can refuse joint custody to the other so that bullshit can stop right now.

To be fair, in your OP you said:

'She wants to remain in the home together and coparent that way - I don’t want to do this'

So - this is exactly what the other person meant by "living apart together". People do that when separating with small children as a way of making separation easier on the kids.

I don't know if you had any consultations with a solicitor - I'd have one if I were you. Try for an initial free one. Or go to Citizen's Bureau.
You don't have an automatic right for overnights with babies. You have a right of contact, and that needs to be age appropriate. As you work - you contact with the children in waking time is mostly on weekends as it is. The night feedings are not really considered the time you spend with children.

So - your claim would look much stronger if you had a proposal that takes into account children's ages and their needs. As the other poster mentioned - Family Court usually don't start overnights until kids are a bit more robust. It will be distressing for the baby to be away from the primary carer she spends her days with, even if the mother is not breastfeeding. The baby will simply not be able to understand what is going on, and be very distressed, potentially affecting how she forms attachments.

So - you need to demonstrate that you understand this and are working around what is best for them - not simply to fight for your right of "equal access".

Best way to do it is to propose a staged plan. That is if you don't want to put a pause on your moving out and stay living together as separated co-parents.
The staged plan could start with you making some adjustments to your working schedule that you do see you children during the week - and certainly before bedtime. Then you take on some bed-times. She takes other. You then come back on some mornings and take toddler to nursery, for eg.
The plan can then suggest when you can start introducing overnights with the elder one. Etc.

You will, of course need to have suitable space to house them.

This is so incredibly sad. It sounds like you wanted to leave the mother of your children before she even gave birth to second baby?

I don’t think 50:50 houses is in the interest of small children, they need stability. I even had a period as a 10 year old going between mum and dads 50:50 and it was incrribly distressing for me and my brother. Luckily my dad saw that

@Sashya You’re right I did say that! Of course things have changed since January. I have had a consultation with a solicitor, I’m not going in blind.

I’m not assuming an automatic right for overnights, that is for the courts to decide. It is my want of course. But isn’t that what I already do? And to be clear I am taking into consideration a staged approach here. Mum and I will still be living together for the foreseeable future as the house issue still needs to be resolved. That could be end of the year or even next year now. I have plans to condense my hours so I have some time off during the week.

@Waterlilysunset Whilst I understand how you came to that conclusion that’s not the full story. I want to ensure that I play an active role in my children’s lives. Thank you for your insight however, on the 50/50 setup and how it impacted you. I would never want to be a drain on my kids, and if that means seeing them less then so be it.

@Gettingbysomehow thank you for your comment. I want to be fair to my ex and I want to do what’s right by daughters. That’s all. If courts tell me I’m wrong, then I’m wrong. But what kind of father would I be if I didn’t fight to be in their lives as much as possible?

Whilst I respect and understand all the points being made, I find it surprising that there appears to be an automatic assumption that I’m not as involved as mum (I respect that she is on maternity leave so therefore by default she does more - but this will change when she returns to work later this year).

It seems crazy to me that we are moving to a society where both parents are really involved in their upbringing of their little ones but in situations like this one parent is treated as a second class citizen. It seems that the default is assumed to be the mum, which I understand generally, but no consideration seems to have been given to the fact that, perhaps, just perhaps, the dad could be the primary parent? Or shock, both parents fulfil the primary parent role?

I’m not trying to ‘win’ or ‘get one over’ my ex. I’m trying to do what I believe to be right by kids. I don’t see how wanting as much contact as possible could be wrong. It makes me feel so disheartened, honestly.

Your ex-partner is six months post pregnancy and you are already set on separating. You want the very young children 50/50. I don’t normally say this but you sound like a terrible parent. How can you not try to salvage the relationship through counselling. It is very likely that she is suffering from post natal depression if you guys have been arguing. If not putting a new mother under this amount of stress is a sign of how emotionally regarded and selfish you are. The kids are not better off with someone who only sees what is best for them. I would not like to live in two properties split 50/50. I have seen this toxic situation in real life with one friend - now the children are older they are back with mum full time. Your ex has a 6 month old baby - according to you Mr perfect, you do it all - did you also grow the baby and give birth. Twat

It’s worse - I just saw she is still on maternity leave and you still think you do 50% of parenting.