Can anyone help with a few questions, I’m helping a friend with an issue she is having with her ex partner who is the father of her 2 children.
He left the family property 2 years ago she remains in it with their 2 children, both primary school age. They were engaged to be married, together 16 years, she sacrificed her career to support him, he was the breadwinner her role was to look after the children & the house. She worked part time, paid nursery fees but the house is in his sole name. It was always intended to be their family home, the mortgage was small and their intention was to get married and he’d ensured in his will that should anything happen to him the house and monies was to go to her, she has a copy of this.
Unfortunately they never got around to getting married, she thought things were great then she discovered he’s been having an affair. He’s now moved on with his new partner and turned v spiteful. When he left he said she could have the house because of what he did, she wanted to try & work things out, he didn’t. She offered to move out with the children as he said it was expensive for him to rent, he confirmed her share in the property 50/50 split agreed the figures, she has all this in writing.
He’s got v nasty and has done a complete U turn saying the property is solely his after taking legal advice even tho it was always their joint family home which was always the intention. She believes she has a beneficial interest in the property and a constructive trust was created.
She has said that she is happy to sell the property and take her share but he wants to sell the property and buy a smaller house for her & the children, while they’re in their minority, but it would be in his name, she will not accept this.
He has now told her of his intention to start TOLATA proceedings using part 8 claim form, I’m not sure why part 8 and not part 7 has been used? Given that she knows the house was always intended as their joint family property she will defend this claim particularly as she has documented from him her share in terms of split, the house worth, mortgage outstanding and the final figure she would be left with given to her by him in writing! He has provided a witness statement which is mainly complete lies but he not yet actually made an application.
I understand that she should issue a Schedule One application in collaboration if he does instigate proceedings. How does this effect costs? With a TOLATA application the losing side pays but with a family law application each pay their own costs? What court would the hearing be at? What will the costs be for bringing a TOLATA application?
She has v little money but will instruct a barrister through direct access if it goes to court. His conduct has been beyond appalling, he has paid minimal maintenance despite running a successful company and driving top of the range cars. It seems he’s finished with her now, has moved on and changed his intentions!
Any advice on this is very welcome