Financial Provision Children's Act- Really?!?

[bustrainwalkwalk]

Long story very short and lots of you have helped me loads already but I really need some advice and hopefully reassurance...

I have an Order for sale on the property I jointly own with my ex. He refuses to comply with it and I have a hearing set to apply for enforcement of it.

His Solicitor has now made an application to Court under Schedule 1 of the Children's Act for financial provision of the children. It states he cannot house himself and the children anywhere else and therefore needs to either have my Order for sale struck out or receive 100% of the equity from the sale.

We have Shared Residency of our young child 50:50! He works part time and earns slightly less than me but we are both on a decent but modest salary (around £30k). I have no savings and own no other property. When the property sells we will both get around 12k. I rent privately and struggle for money, I also have two other children whom I solely support! In short he has far more disposable income than me! This just doesn't sound right.. surely this act is for when the absent parent's lifestyle/income is, well, wealthy!

He wants to sell the property to his sister for less than the market value rather than place it on the open market and his solicitor is obviously trying to scare me (litigant in person) into agreeing. Apparently his only other option if he can't live in the property we own is to be homeless and he'll have to live in a Council Hostel- surely with his 12k profit from sale he can rent privately like I do and claim Housing Benefit surely? I can't afford to buy myself somewhere to live why does he need to be a home owner.

I realise the application is just an application but I'm scared that his solicitor is right. She's said no Judge in the land would Order the sale of a property that is occupied by a young child! That Order was already made though and the Judge at the time said he works and he will get 12k ish from the sale so he can easily rent somewhere. I desperately need my 12k to pay off debts pay my legal fees...

I know it's a big ask but please help if you can. I'm scared he will win this and I get left with nothing :(

Do you receive Child Benefit? I ask because that makes a huge difference to the benefits/support he will receive - even though care is 50:50, the parent who does not receive CB will be considered the NRP.
That means he'll have no access to tax credits (unless you agree), and no account will be taken of his parental responsibilities by the benefits agencies - he may well not be eligible for HB if he works P/t and has "no children" for the purposes of residency.

If you are the RP for the purposes of finances, it will be very easy for his solicitor to "prove" his income is significantly lower then yours and therefore the options open to him for housing are more limited.

Not a lawyer.....

But effectively he's asking for a judge to go against another judge, which I think is highly unlikely to happen, they tend to stick together....

Thank you both.

Yes I'm hoping he has missed his chance to make the application to stop the sale of the property. He didn't attend the final hearing and the Judge that made the Order for sale already considered the children as part of the Tolata proceedings. He has stable long term employment and he will get over 10k lump sum from the property sale, therefore the children won't be homeless as he has means and funds to house them.

This is a short message but an important one. I suspect I know some of the answers but I'd rather not guess.

Were you married?
What was your original application?
Was he served with that application or were his lawyers?
Did he comply with directions within those proceedings?
Has he offered any explanation for his non-attendance at the final hearing?
How long ago was that order made?

Yes please Huppopap - very much appreciated!

• Never married, just cohabiting.

• Original application under ToLATA

• He was served, he had no solicitor at that time.

• Directions hearing was held (last year!) which he attended. We were both ordered to file and serve statement & evidence within 2 months- he didn't file or serve, no reason ever given.

• He didn't attend final hearing. Order for Sale was made in my favour- this was now 3 months ago. Judge was given all relevant information by me, Judge knew he was living there and had 50:50 residency of our child, Judge decided to make Order for sale as he was getting around half the equity and could use that to re-home himself.

• He has totally refused to comply, won't allow access to Estate Agents, won't sign to have it marketed.

• We have been back to Court once and he was told to comply or face being held in contempt, he has already been Ordered to pay most of my costs to date for not complying with the Order, which is good I know :)

• He is now making offers outside the Order. His solicitor has said if I do not act reasonably and accept the offer then they will apply back to Court and I will come off worse financially. I know the importance of being reasonable but given the Order has already been made for it to be sold on the open market I don't want to enter into negotiations, he is a lying, cheating manipulative git to be honest and I need the security of the Ordered sale.

• He has said clearly he can't afford the mortgage. He wants it sold privately to his sister and she will let him live there as a tenant. I have said fine, it can go on the open market as per the Court Order and she can make an offer and buy it if nobody else offers more. She only wants to buy it at £5k under lower end of market value. I know the market round here is good and this type of property is in demand, Estate Agent has said it could go for more than valued at - I want to get as much as possible for it, even a few thousand more is a huge sum of money for me.

• His solicitor's letter states they have advised him that given our "relative financial positions" (I earn 30k and rent privately myself, I have no assets, no savings, lots of my own debt, I own no other properties and no car even!) they have advised him that he can make a claim for "capital provision" from me. I have no money, he has more disposable income than me, he has 1 child 50% of the time I have 3 children to support! He works in a stable career, he has a car, pension, and a similar income to me.

Can he contest the Order 3 months after it was made? If so on what grounds can he do that?

Is there anything at all he can do that I need to know about to protect myself? I thought this was all over when I got the Order, I just need some security and it sold so I can move on but equally I want to realise as much money as I can from the sale so I can clear my debts and start over...

• Sorry last thing you asked - why did he not attend the final hearing.

Well he didn't file or serve his evidence which was due in 3 months before the hearing. He did not inform the Court he would not be attending. His excuse is now that he thought we would agree something out of Court and claims we had lots of emails between us that lead him to believe I wouldn't be attending the hearing so he didn't attend either. This is not true, he said this to the Judge at the last hearing (the one where he was Ordered to pay my costs) and the Judge said "well that's just not a good enough excuse, how ridiculous, you have no grounds for appeal as far as I can see".

I have followed your threads - he seems like a twat of the highest order. So have some
Im afraid I don't have any legal knowledge but to my common sense mind it would be grossly unfair.
I would say though that his solicitor will write in their letters whatever he pays them to write.

Similar criteria under TOLATA and Children Act, and he should have cross applied under CA when you issued your TOLATA application. Can't see him getting very far with it.

Thank you collaborate. I noticed the criteria checklist were very similar.

Do you know if he is unable to/ has no grounds to appeal my order of sale if he can apply under the Children's Act for financial provision (ie he gets the property and it doesn't get sold until child is 18) as an alternative way of getting my Order cancelled/struck out?

Basically can one order cancel out the existing one in this way or would his application not be successful as to make the order would entirely contradict an existing order...

Thanks all. It's just so worrying. I know I don't have any spare money or disposable income so ultimately they can't get from me what I don't have. If a Judge orders I help him financially as he has a need to house the children then I wouldn't be able to afford to pay my own rent so I couldn't house my own children!

I wonder if you moved back in that would improve things? It's your property. you have as much right to live there as he does at the moment.

Anyway it is probably a bit late for that.

Thanks Greengrow. I would consider it if I didn't have kids but it's not really practice- it would be too small for me and my family and he'd refuse to leave likely ending up in conflict and upset for the children. Plus I think he'd use it to go to Police possibly make some false allegation and try and cause me more hassle.

Are you the one that fancies needs a £20k new car for your baby and expects the father to cough up even though he pays the required amount through CSA?

hsamantha, is that really necessary or appropriate?! bustrainwalkwalk's trying to ensure an order of the court is obeyed. I can't see how she can be criticised (much less jeered at) for that.

Hsamantha please don't PM me again. This is a public forum and I, you, bustrainwalkwalk and indeed the Cookie Monster can post as we see fit.

Hang on a sec, I think there has been a misunderstanding. Unless I missed something there was no marriage so there could be no application under the Matrimonial Causes Act 1973. Therefore the original application was under property law, the Trust of Land and Appointment of Trustees Act. As Collaborate said normally cohabitants' Schedule 1 claims should be conjoined to any TOLATA claims.

Thanks everyone, sorry I didn't see updated posts from the last few days.

Not sure what hsamantha wrote that got deleted, shame really as I bet it was amusing. She's the poster who is trying to get 20k for a car for her baby that he needs for nursery runs...from the Father who isn't wealthy.

We weren't married so MCA not applicable. Yes my proceedings were issues under Tolata. I'm glad to hear it seems he has no chance- would be like getting blood from a stone anyway

I have responded to his Solicitor with the help of a lovely MN'er and hopefully that should shut them up. I think it's scare tactics as they know in representing myself...

He was given two weeks deadline to get property on the market (he needs to sign estate agents paperwork to consent). It's been ten days and he's not done it. A notice was added to the Order at the last hearing stating I could apply to court if he didn't comply and they will have to consider holding him in contempt of Court.

Anyone know what that involves? Can't say I wouldn't be secretly smiling if he gets another ripping apart from a Judge. The last one was very intimidating- I think I'd have cried if she spoke to me the way she did my ex. He's never lost for words but he was positively stumped by her!