Separation when unmarried with joint mortgage and three DCs

[ScabbyBabby]

Would really appreciate some legal advice (or experience from someone who has been in this situation) on what is the likely outcome of what happens to the house in this scenario.

My children's father and I have separated and he has moved out (verbal abuse and drug use being the predominant reasons but won't go into that here).

We have three children together, ages 10, 8 and 5 and I am and always have been the primary carer. He works long hours and earns good money and can afford to house himself even after child maintenance has been paid.

I am currently on job seekers allowance and frantically looking for a job because I would ideally like to be able to take the mortgage on, on my own, at some point in the near future.

My ex wants to force the sale of the house which is not in the interests of the children. He did put some equity into the house (as did I) but only about £35000, which he is desperate to have back. he doesn't care about the needs of our children, he appears to want to make my life as difficult as possible despite me being the reason that he has been able to dedicate time to his career over the last 10 years.

Where do I stand? If I'm not in the position to be able to buy him out soon, will the courts force the sale despite me not being in a great position to rehouse me and the children?

Thank you.

ThatsFuckingShit are you legally qualified or talking from experience?

I'm not worried about him trying to return because I have enough evidence of his abusive behaviour and I would phone the police again. I could have already obtained a court order to keep him out but I'm trying not to inflame the situation. He has moved into a rental already- he does like to remind me frequently that he has the keys to the house and can be here at any time, so I am aware of his rights in that respect.

It was this bit that gave me hope: You may want to get legal advice to see whether a court order can be made allowing you to remain in the property for the benefit of your children.

It is obviously worth seeking proper legal advice but I think it's unlikely that you will be able to stay in the house unfortunately.

A friend in similar circumstances was forced to sell because he argued that he needed his share of the equity to rehouse himself, and that he couldn't get a mortgage while he was still financially tied to the family home.

Sometimes these things can be negotiated but it doesn't sound like you're in a strong position to do that.

He does sound like a shit though. Where does he want his kids to live? Has he suggested buying you out?

Most important thing is to get yourself to a property law solicitor .

Thank you everyone for your advice. It is much appreciated.

I've found more information on Wikivorce suggesting I have a chance. Going to cut & paste the info here so I can come back to it and also if anyone else is in my position and searching Mumsnet, this may help them too.

From a solicitor on Wikivorce, advising 'the ex':


The answer to your question depends very much on this.

However, if, as I assume, you are not married, then I suspect the answer is not what you want to hear.

That is :

1. The Court undoubtedly has the power to order a sale.
2. However, whether it would do so is a matter for the Court's discretion.
3. In exercising that discretion the Court would look at the underlying purpose why the property was bought.
4. They are required to have regard to certain factors in section 15 of the Trusts of Land and Appointment of Trustees Act 1996.
5. One of those factors is the welfare of any minor child who occupies the dwelling as his or her home.
6. Where is a dependent child, as in your case, there is a strong probability that the Court will delay a sale, perhaps until your step daughter is 18.

If you are married the Court has very wide powers and it could also delay a sale, perhaps for an even longer period.

The long as and the short of it is that it is unlikely the Court will leave your step daughter without a home.

I haven't gone through all the facts with you. If your partner is swimming in money and could easily rehouse herself and her daughter, then you might have a chance.

But you asked for an opinion, and you've got it.

www.oertonsimm.co.uk/family-law/children/financial-provision-for-children/

This link also suggests The Children's Act can be used by the court to order a scenario similar to the Mescher Order.

If you are not married, then his remedy would be to apply to the Court for an order for sale. In the long run, this could not be prevented, but the Court might well defer a sale, perhaps till your child reaches 18. It msut also decide how the proceeds are to be divided on eventual sale.

If the property is held by thetwo of you as joint tenants, the starting point is 50/50 but this is only a presumption and it can be more if one party can show that (s)he made contributions to the property ( which doesn''t include living expenses ).

Although this isn''t a Mesher order, it shares some of the characteristics of one. The essential difference is that a Court can re-distribute with a Mesher. In the pool in which you''re swimming the Court''s function is to decide what the interests of the parties are.

Above post cut & paste from another forum.

Please don't take this the wrong way OP, but you need legal advice from a qualified legal professional.

All the googling and copying and pasting from forums is not going to allow any of us to give reasonable legal advice.

I know you want it resolved but it is starting to feel like you're hoping if you copy and paste enough to the thread someone will say 'you're totally entitled to stay in the house' which is what you want to hear.

Even if someone were to turn up and tell you what you want to hear, it doesn't make it legally binding. It would be their opinion based on what you've copied and pasted.

You need legal advice and this thread needs pinning (with all the others somewhere) to show people there is a reason many mumsnet poster's speak about the legal protection of marriage, the implications on women of giving everything up without appropriate protrctions, a split is different to a divorce etc.

Nobody here can answer your question op because it depends on so many variables.

To take an extreme example, a court would look favourably on a woman who was unlikely to be able to find suitable paid employment - through disability, several young dc, dc with additional needs for example - while her xp was already rehoused adequately and demonstrating good earning potential.

A woman with school-age dc and the potential to earn enough to rehouse herself, given tax credits/child maintenance/equity from sale, whilst the xp earned an average salary and was himself struggling to rehouse himself, might not be entitled to stay in the shared house.

You do need legal advice, there's no substitute for it.

Thank you both, not taken the wrong way. I totally get what you’re saying.

Just popping any useful info I’ve found here so it’s in one place. That’s all really.

I think it’s good to get as much information as possible prior to the free appointment with a solicitor so that time isn’t wasted. If I can get my head round the possibilities now then I feel a bit better about the situation.

I think the law might be changing in this area soon also. As it is, with the percentage of couples cohabiting on the rise, and the percentage of those getting married falling, it needs to. Children of unmarried couples shouldn’t lose out because of the choices of their parents not to marry. The welfare of the children should be the priority regardless of marital status, in my opinion.

Society is changing, the law needs to reflect this.

The law doesn't need changing. The law doesn't need to be involved in relationships unless it's invited.

Even in marriage keeping the house isn't always guaranteed. If you wanted the law to protect you and your kids home, then you should have done something about that before.

Wanting the law to step in, when you didn't have it involved before is ridiculous.

I get you are in a difficult situation and I totally understand how upsetting it is. But you could have made different choices.

Yes I could’ve made different choices, but the children can’t, and that’s the point.

There are calls for reform in this area. Some will agree, some won’t.

The law doesn't need changing. The law doesn't need to be involved in relationships unless it's invited.
This ^
There was a thread arguing (like the OP) that the law should change because people are opting not to marry. The law doesn't need changing. If people wish to enter the legal contract of marriage with all it entails then they are free to enter that contract. If they choose not to then that is also their choice and they do not get the same legal protections or responsibilities.

If anyone chooses to place themselves in a financially precarious position without opting to get relevant legal protection then that is their choice.

With the best will in the world OP, you opted to sacrifice your career, earning potential, security and financial independence without the legal protection marriage offers. The implications from that choice are yours to deal with.

The usual reply to this is 'but women can't make a man marry them'. No they can't. But they can choose whether to remain in that relationship or not and they can CHOOSE whether they give up financial independence and become dependent on a man who does not want to make a legally binding contract which protects and values the contribution of the at home parent in the event of a split.

www.wikivorce.com/divorce/Divorce-Advice/Cohabitation-and-Separation/365262-Legal-Rights-for-Co-habitants.html

Interesting article that raises the issues discussed.

Yes I could’ve made different choices, but the children can’t, and that’s the point.

As a parent it's your job to make decisions, everyday, that impact your children. The law can't retrospectively jump and clear up your mess.

Children of married and unmarried couples are protected. There is not promise that the children will get to remain in the family home if the parents are married. Each situation is looked at, individually. Just because you think the kids must stay in the family home doesn't mean that it is. They need to be housed. How that happens is what's in question. The whole situation is looked wether you are married or not.

There are calls for reform in this area. Some will agree, some won’t.

That doesn't mean the law will be soon changed. As long as your children are housed, they are housed.

ThatsFuckingShit, are you legally qualified or talking from experience?

I'm not asking the law to 'retrospectively jump' and I will never regret the decision not to marry. I am just wondering the likely outcome might be, in my situation, prior to getting legal advice.

Thank you for your invaluable contribution.

In my similar situation - low income, 2DC, unmarried i was given legal advice that it would be very expensive to take him to court and unlikely I would win, perhaps a small reprieve but I was not able to take on the mortgage - as you are not either as you don’t have a job, and he needed his own equity to house himself. It wasn’t fair in an ideal world really was it, but I had to accept it. And frankly it was best in the end for the kids long term because a house is just a house and selling up was a clean break. They want a happy family too, you can make any house a home. I Had to accept that I did not have the resources to fight something I had entered into a contract - a joint mortgage with no marriage.

In my limited non professional experience your mortgage is what you are adhering to and it doesn’t have any clauses about children. So find yourself a good solicitor and see if you can 1. Afford this fight 2. Whether It’s worth it 3. Whether you have any better options

Renting isn’t all bad. If you own that house and the roof falls in and you only just manage to scrape by each month you are screwed. Are you really in the best position to take a mortgage on and is it reasonable to ask him to wait 2 years to sell it? You already say it needs a lot of work, even on £20k is this realistic

ThatsFuckingShit, are you legally qualified or talking from experience?

Yes.

I think it’s good to get as much information as possible prior to the free appointment with a solicitor so that time isn’t wasted

You really think you're going to get qualified legal advice on your situation for free? The 'free appointment' is a) not obligatory, solicitors don't have to give it b) designed to make you hire the solicitor. The fact is that it is in no way guaranteed that you will be able to remain in the house, that's so even if you'd been married. His legal obligation is to pay maintenance to support this children, not give you a house. You are also obligated to support them, too. You're focusing on staying in a house you can't afford. Focus instead on getting a job and hiring proper legal advice rather than Googling (and the clue is in the name, Wikivorce). You are not getting a divorce so legislation governing divorce doesn't apply to you.

I’ve got a job interview on the 11th Sept (fingers crossed), if I get the job, the salary plus maintenance would just take my income to the amount needed to take on the mortgage, if I can find a mortgage company to use a 4.5 calculation and take maintenance into account (some do).

I’m not expecting to be given a house. I’m planning on giving him back every penny he paid towards the deposit. I put nearly the same amount myself.

He has already rehoused himself so that isn’t an issue.

I don’t intend on taking him to court- it’s more the worry of him taking me to court. I will represent myself after taking legal advice.

The house needs a lot of work, the roof was done last summer by myself and a family member. I’ve carried bricks on my shoulder up scaffolding ladders, I’ve literally raised the roof with acroprops, shifted tonnes of sand and carried 25k bags of lime, taken down walls, and rebuilt them under supervision.

I’ve done this as it was the only way to give the boys a home bigger than a 2 bed in the area. I’ve also had it rewired and replaced windows in the boys’ bedrooms (paid for out of savings I had).

I know it’s just a house at the end of the day but I would be silly not to explore the option of the boys staying their home.

It would be really petty if him to force the sale when he would get less money from a sale than waiting 2 years for his money.
He won’t use that money for a deposit anyway, he is getting himself into more and more debt due to his drug habit. I know exactly what will happen to his share of the equity.

I need to be able to provide the boys with stability. It would also be nice to leave them something when I’m gone.

Hoping ex will agree to wait for the boys’ sake but if not I will need to know where I stand.

I’m getting the impression that this thread is running some people up the wrong way.

Regarding free legal advice, I already have an appointment booked, it’s half an hour free. It’s not unheard of.

Rubbing some people up the wrong way, that should’ve said.

Excuse typos, on phone.

LeftRightCentre Wikivorce has a section for cohabitation.

What people are telling you, but you won't listen, is that he has just as much right to the house as you do unless you have a pre-existing legal agreement that says otherwise. You seem to think you have more right to the property than he does and that's not so. If he is running up debt he may well want his share in the home and he can pursue that. It's important to consider the fact that you may have to move and how that will come about because it's fairly common in splits. The free half-hour is designed to sell their services, not solve your legal issues. But you crack on. Not really sure why people start threads if all they want is for everyone to validate what they feel is right .

LeftRightCentre, I am reading and taking on board all the advice on here and it is appreciated.

Will update the thread when I’ve had legal advice from a qualified solicitor. Just so that if anyone else in my shoes comes across this thread they may find it helpful.