Unmaried Couple splitting

[Leah4]

Hi, I would be grateful for some advice for my friend.

She and her partner of 10 years is considering splitting up. They have two young children aged 3 and 7, and were engaged. He owns the house they live in and she soes not have her name on the mortgage or Deeds (yes not wise!). She has been with him since buying the property and they bought it on the consideration of it being a jjoint, family home. Albeit not legally. My freind has always paid for all of the children's clothes and related items,holidays, towards some bills, repairs and home improvements.

She has a small flat property which was bought 8 years ago which is rented out, and is 2hrs from their home. She has has said she could sell it in 2 years after her fixed rate mortage ends, or it will incur a large penalty before.

My freind understands that she cannot get any equity if they sale the family home, and it would be low, as the mortage is quite big.

She would like to stay in the family home,even until the children reach 18,if possible, due to schools, and hopefully less disturbing for the children.

Her partner has earned quite alot more throughout the relationship, and she works part time. He seems quite fair to sort out something reasonable for the children. He does not think he can afford to rent privatelty.

What do you think woukld could do as she no longer wants to continue living with him, as it has become very strained.

I had advised that she would probably not get housing benefit as she has a property. Is this correct?

What would a fair split of assets be?

Should she share 50% of the equity from her flat with him?

Thanks

[Leah4]

I agree Wamster, and does give a stronger framework in such matters rather than depending on a DP's good will in the event of such splits happening.

At present her DP is being considerate, suggesting giving her some of the equity. Although she would love to stay in family house for children, looks unlikely. Unless she wins some money or gets a great paying job to buy him out.

[Wamster]

I should imagine that it is limited because property ownership can't really be given away just like that.

I think your friend's situation is a classic example of the importance of marriage- NOT because it is a guarantee of commitment (far from it) but because if a married couple split, the law has the power to make all kinds of orders etc which it simply doesn't have with cohabiting couples.

[Leah4]

Thanks for all of the comments and info, which I have passed on.

My friend is very unlikely to get HB as her tenant can move out in two months. If hse decides to buy a property in the area she is currently living in, it will only be a 1 bed flat. If her DP sells the family home in two years to avoid the mortagge penalty, and agrees to give her some of the equity, she could buy a 2 bed flat.

She has seen a solcitor who has advised that she should continue to be the main carer, and try to stay in the house, or possibly go for Schedule 1 of the Children's Act, and give her property to her DP. Her partner may consider this, but I doubt it. This would be very costly legally. And she would not get back anything if she were to stay in the property and pay for any work to update it.Lots of things for her to think about.

The law is limiting even when children are involved in such circumstances.

[LoodleDoodle]

Leah, your friend needs to talk to HB and tax credits. If it's his home she is unlikely in the long run to be able to stay.

I am in similar situ with a long term tenanT in my flat, but local council have confirmed that if I rent, I will be entitled to HB at standard rates as long as I'm making no profit from the flat. Think this might vary from area to area, but with tax credits etc, renting is now feasible, so its worth looking into.

[Bramshott]

Leah - I think in that case I'd be tempted just to go for a 1 bed with a sofabed in the living room for myself and the bedroom for the kids. It's not an ideal situation, but nothing about your friend's situation sounds ideal .

However, a solicitor will know more about what her best options are.

[Resolution]

In the usual case, where the father earns enough to pay CSA maintenance, his own living costs, but no more, then the mother will have to pay the mortgage. If she can't do that, she won't get the order, though she would get credit for capital repayments.

Was discussed in a long thread a few weeks back.

[Wamster]

Resolution, I agree with what you say, but could not the mortgage payer simply refuse to pay mortgage (if property is still mortgaged) and walk away leaving the 'poorer' mother without means to pay mortgage?
Out of interest, and apologies for taking thread slightly off topic, what usually happens in cases such as Leah4's friend?

[Wamster]

The bit about the dp being reluctant to put her on deeds gives me the impression that he will NOT be willing to let the house go without a fight.

He had the foresight to imagine a time when the relationship would break down; he is obviously a planner and is cautious when it comes to money.

[Resolution]

Take a look at Schedule 1 of the Children act 1989. That underlines the principle that the children should not necessarily live with the wealthier parent. That of course would be Dickensian, and would ignore the wider needs of the child.

The court has the power to allow the carer of a child to live in a property owned by the other parent. So the answer to the question why would the court do so? Because it can, and because it is in the best interests of the child. This is an over simplification, so proper advice needs to be sought.

[cestlavielife]

for the sake of argument, the children could reside in the fathers house with the father, as is his house.

she could move out and father could drop the DC off there whenever needed for childcare.

why would a court decide she should live in his house with the children?

if he is saying "it is my house, you move out, i stay here with DC and you have contact as we agree" then surely that is a valid option if there are no welfare concernes?

surely court could equally decide he has residency there in his house with the children and they have contact with mother?

the point about porting a mortgage is relevant too - it would mean not having to pay the penalties (maybe) and perhaps selling to an investor as a rented out property.

many things to consider...

[Leah4]

A big part of the problem is not having her name on the Deeds, which her DP was never keen on, even with her paying out all her salary on kids, child care, household related expenses.

Bramshott - she could port her mortage but could probably only afford a one bed property due to her part time salary.

She is thinking for a positive outcome solely for her children.

Thanks for the link Resolution

[Resolution]

You're right, but under the children act the court can let her stay on in the house if needed to house the children. She won't be entitled to any of it on eventual sale if she can establish an interest in it using established land law principles.

[Wamster]

Resolution I respect what you say, but wouldn't it be a case that the Children's Act is there for the children and not the mother's benefit?
Or am I wrong, and the 'judge' can order the mother receive money for her benefit?

[Resolution]

Wamster - don't forget about a Children Act claim. they are not legal strangers due to that.

Leah - tell her to look at this

www.hertsfamilylaw.co.uk/

[Bramshott]

Can she not sell her flat and 'port' the mortgage to a new property she is buying? We did this when we were still in the fixed term and it was pretty easy.

[Wamster]

As for any other assets, I think they both take what they came with and what they bought during relationship with them. If purchases bought jointly, then obviously both have half each (as a rough guide).
I think your friend needs to stop thinking of this split as being like a divorce. There is no division of assets as such like in a divorce with a cohabiting couple, they are effectively legally two strangers who have shared a house for a while.

[Wamster]

Agree that the starting point is that it is his house. This is the default position as it were.
I agree with everything freshmint says.

To be honest, legal representation/solicitors do not come cheap (why should they? They are professionals after all) and perhaps-just perhaps- the cost of using their services may outweigh any possible financial gain for your friend especially as-in the absence of her name being on mortgage/deeds -things are not clear cut. But then had she been on mortgage/deeds, there'd be no problem anyway.
Do think this needs consideration in all of this.

[Leah4]

Resolution - my freind lives in Hertfordshire.

Cestlavie - She did not pay towards the deposit, but spent a lot on building work. She will speak to a solicitor on whether this route can be taken, but looks unlikely. She is the main carer, due to his work, so having a shared residency would be difficult. Would it also be more difficult for the children sharing two different homes each week?

[freshmint]

Did she contribute anything to the purchase price directly or indirectly (eg pay off his debts so he could get a mortgage or something like that?). Did she make mortgage payments or make other contributions like pay for building works or pay the bills IF by doing so she enabled him to meet the mortgage payments? Was there any express agreement at the time that she should have an interest in the property?

Basically if he owns it in his own name there is a presumption that he owns the beneficial interest in its entirety. She would have to disprove that presumption by showing that she did have a beneficial interest in her own right - by doing one of the things above. If she can show that then it would be up to the court to decide how big her interest should be, in the interests of fairness.

It is expensive to litigate under TOLATA and therefore if there isn't an fairly clear case she shouldn't go down that road.

She needs to go to a solicitor and give her/him the full story and get some advice.

[cestlavielife]

yes TOLATA you need a barrister probably - but she could employ one directly.

its residence not custody.

" she would get more tax credits, which he could use to pay for another flat. "

bit dodgy - she will get credits and give them to him? either they going to split financially or they not...

she needs a solicitor.

it is his house.
she has no rights to it as such.
if they both agree she should stay in the houise then fair enough - but if he telling her "you move out and we share residency 50/50" then i cant see any reason why not?

the children have rights.
both parents have responsibility towards the children
the children need a residence (or joint residence)

[Resolution]

where is she?

[Leah4]

Thanks Resolution for the speedy reply.

Yes I think she does need to see a solicitor regarding custody and possible TOLATA.

How can she find a good family solicitor?

[Resolution]

she needs to sit down with an experienced solicitor and get proper advice. TOLATA claims are very technical. Children Act claim may be the best way for her to go, but there's no substitute for a proper diagnosis and proper advice.

[Leah4]

Thank you for advice and messages - all very helpful for my friend. I have not been able to reply sooner until now due to work.

My friend has now discussed options of what next with her DP. They are still living in the family home, which has created a lot of stress.

What could she do short term, as she cannot afford to move out, and her DP says the same, and her family are in the North of England? Parents live in abroad.

She cannot yet sell her rented property for 2 years due to the mortgage penalty charges. The flat is 2hrs away, and they both want to be near the children, and schools etc. The schools in the area of the rented flat are quite bad. They want to stay in the area they are in.

Her DP says she could leave and the children stay there, but she is the main carer, and she does not want to do that.

If he moved out, she would get more tax credits, which he could use to pay for another flat. Her DP has also talked of selling the house/remortgage to release some money, but would need to be quite a lot to buy somewhere due to friend's salary.

Would it leagally be expensive for her to do a TOLATA claim?

Also, how does she sort out custody - should she decide on joint care, and decide where the children's main carer will be?

Thank you!

[Resolution]

She may have a claim under the children act for settlement of property (there have been loads of threads about this recently).

The capital in the flat will make her ineligible to receive legal aid if it's over £8000. That figure will soon change to £1000. It will be ignored though if they are living together.

The government, in it's infinite wisdom, does not want to fund cases like hers in the future, so she'll be on her own if she can't afford legal representation.