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.

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)
Typical is 3.5 times your salary. If you're needing 4.5 times income (which is salary plus CMS) I'd be think you've got very little chance.

I need to be able to provide the boys with stability.
In the eyes of the law they need to be housed, not housed in a house of your choice. Given people move house all the time, I think you'd be pushed to argue moving house is some big event.
It would also be nice to leave them something when I’m gone
It would, but the law isn't formed because it would be nice to leave something.

I’m getting the impression that this thread is running some people up the wrong way
Not so much rubbing people up the wrong way. More people have repeatedly told you that you need specialist legal advice be you're intent on trying to prove you have more of a right to the house.
The rubbing uponky really happened when you started suggesting the law should be changed

The law is always being amended and adapted to meet the needs of modern society. It’s not so far fetched to think that reform is needed in this area of English law- cannot see why holding this view would bother anyone else, both opinions have validity.

Scottish law already provides such legislation for the protection of the welfare of children with cohabiting parents.

I am listening but I disagree with a lot of the advice being offered on here. I still appreciate the effort that people have gone to in adding to the thread.

The law is fine the way it is.

If you want the protection of marriage, then get married. Or at least have the common sense not to give up your financial independence for a man who has no legal obligation to you whatsoever.

People who choose to cohabit should be allowed to do so without having marriage rights forced upon them just because they also chose to have children.

OP, I hope you get some proper advice and are happy with the outcome. You are in such a difficult position and, having been there, I can certainly sympathise.

But I think that what may be rubbing people up the wrong way is the fact that you didn't want marriage, but now want the protection that a marriage contract would have afforded you.

Your talk of changing the law is irritating. Should I ever enter into a relationship again I will not marry, in order to protect my assets, in order to ensure that a future separation is relatively quick and painless. If I thought that cohabiting would give a partner a right to a % of my hard-won assets I would remain single forever.

People must have the right to enter into a legal contract (marriage) or not, without fear that a contract has been imposed upon them. If you want marriage rights, get married. You were daft as a brush to keep having dc and give up your financial independence without marriage, yet now expect the law to mop up after your poor choices.

I hope he gives you the arrangement you want, I honestly do, because it would be the best option for you and your dc, but the law is fine as it is if people would just avail themselves of it.

How much equity is there in the house? That may impact...Would that get you each a deposit on a smaller house ?
You said he would get35k which is more than half the equity?
You can bring up all the evidence e e.g. funds coming to you in 2 years to buy him out (will they be enough?) but it isn't a given you get to stay... speak to someone with knowledge of running a combined TOLATA and children's act case...but beware ....legal costs may be expensive....

You say

...he would get less money from a sale than waiting 2 years for his money...

If the property is sold you both get 50 50 share of equity (after costs)

If the equity is less than 70k ie half is less than the 35 k he put in then he gets less and you get less.

But ask a legal expert. With all variables e.g. current market value and mortgage owing.

I would suggest getting a job. Secondly, you really cannot rely on a relative to give you money in 2 years. You need to pay bills and mortgage now ! Get child maintenance from your ex via CSA. Suggest you speak to a financial advisor, because buying someone out of property is expensive, plus solicitor fees, mortgage arrangement fees etc The best solution may be to sell house and split it 50/50 financially. Can you get a lodger, you can earn X amount without paying tax on the income

It’s not so far fetched to think that reform is needed in this area of English law- cannot see why holding this view would bother anyone else, both opinions have validity.

OP that is your opinion but it certainly isn't mine. If you wanted rights over your partners share of the property, you should have married.

The law at the moment is that your intention at the time of purchase is what counts. You hold the property as joint tenants which presumes 50 50, particularly as there is no deed of trust or any indication the intention was to hold the property as anything other than 50 50, unless something else was agreed? That would be difficult to show on the balance of probability because the evidence is not supportive. In my opinion you will not be successful in trying to establish anything other than 50 50, and The Children Act will not assist you. The children will be adequately housed with the balance of equity to which you are entitled at sale. Your ex partner, if he has to apply for an order of sale, will also, as well as getting the order, get costs against you.

I would suggest that the house is sold, you take your share, rent somewhere for now, and try to get a decent job with prospects. Then , in two years, if the sum of money from the close relative materialises, you will have a decent deposit and hopefully the salary to obtain a mortgage, so that you own a house which is your and yours alone.
I get that you have invested a lot of hard work in improving the current house, but don't buy into the sunken costs fallacy. Cut your losses and move on.

I think Vivaldi talks a lot of sense actually. Your plan is so precarious op. You need to get the job on 11th September, find a mortgage lender that will approve 4.5 x salary and include CM, get your ex to agree to wait two years for his equity, and then also completely rely on him - a drug addict -paying the full CM in a timely fashion every month. If the wheels come off you may have to sell quickly. Why not sell now, be free of him, and use your share of the equity and your windfall in two years to buy somewhere else.

I am in this situation. I got a free half hour consultation and they would not talk specifics. It was very informative but talked about options and situations in general but not specific to you. I guess because you are not paying.

I also saw a financial advisor and they advised that general maintenance is only included if court ordered. She also advised that generally 4x is max lenders will look at now.

Vivaldi is right, you can't rely on a drug addict to provide you with regular income and I'm not sure a mortgage lender will take maintenance into account as it's not guaranteed income. He's going to be sticking the maintenance money up his nose. Never put yourself in a position of being reliant on others financially if you can avoid it. I'd sell up and get somewhere else that is yours and yours alone with no negative memories attached to it. Hope it works out ok for you and the kids.

RainySeptember
I agree. It's always after people have chosen to give up their own security and rely on a higher earning partner and get bitten that suddenly the law needs changing to reflect the fact that people make poor choices.

OP You're talking about provision for children. There's already laws to ensure the children are housed (although CMS has areas to improve in my opinion), the law just doesn't mean 'children can stay in a home of their parent's choice regardless of how affordable it is'.

And another person thinking vivaldi has given great advice.

WRT the free half hour, tread carefully with that OP. There are some issues that are quite half-hour friendly, if you see what I mean. Straightforward, down the line stuff. Claims relating to trusts aren't necessarily amongst them unless it's a pretty clear no chance. What you are likely to need is advice from someone who will go into detail about the specifics.

Also, be careful you don't allow your belief that the system needs reform to have any impact at all on your thinking now. You're stuck with the current system. So what I mean here is, no crusades or acting on principle or anything like that.

I must say as well, I'm another who sees Vivaldi's point. Not sure I'd want to be in a position where I had ties to your awful sounding ex for longer than the bare minimum. People often get very focused on the children being able to stay in their home when there's been a split, but there are much worse things than a fresh start.

My credentials- solicitor but only did about a year of family law, a while ago. So I know there's theoretical provision within the law for what you want but not sure how likely it is. And forgive me, but I do recognise in you something I saw in clients, the the desire to hang onto the family home while the kids are young at all costs, whether it's necessarily in your best interests or not. It isn't always.

We're just moving this over to legal matters at OP's request.

I have not read the full thread.

As you were not married you don't get the legal protections that go with being married. However, you are in a better position than some unmarried couples as the house is owned jointly.

The Children Act does apply so, even though there is no protection for you, there is some protection for them. Look up Schedule 1 of the Children Act and TOLATA. It may be that you will be able to delay any sale of the house until the children are older.

You really need to see a solicitor. Once you have given them full details they will be able to give you proper advice on the likely outcome.

I agree with the previous poster that you need to put aside thoughts about reforming the system. You have to work with the system as it stands. By all means campaign for change (although personally I am with those who think that couples should get married if they want the protections that go with marriage) but keep that separate from sorting out your settlement with your ex. Trying to get the courts to change the law is unlikely to be successful and would probably end up leaving both you and your ex with nothing as it would all have vanished in legal fees.

If he's getting into debt you will probably end up.losing the house anyway unfortunately. A mortgage company would want to see a minimum of 6 months of maintenance payments if they are including them in your income

For anyone in a similar situation to me looking for advice then I have been reassured by a reputable family lawyer that it is highly unlikely that my ex can force the sale of the house with 3 minors living in it.

She said no good solicitor would advise him to take me to court to force a sale as not only is it extremely unlikely to be successful, he would then end up paying both parties’ costs if he lost.

I have been advised to ask him to transfer the mortgage into my name with a charge placed on the house equal to his original deposit (more than he is legally entitled to, only entitled to 50% of the equity at best). Charge is released either when I pay him back or house sold releasing his money. House can not be sold until youngest child is out of full time education.

The fact that we were never married has gone in my favour here because it means that he alone is liable for his debt.

I just want anyone in my position to feel reassured by this as it’s a hugely worrying situation to be in.

Actaully since he owns 50% he is entitled to the full 50% of the equity.

Aka if house is worth 300k morgage is 200k he would be walking away with 50k not simply his 35k back.

You might be able to deley house sale but unlikely to get it until youngest is 18. And even if you did deley it he would be entitled to the full amount even if the house jumps up to 800k and he only put in 35k on a a cheap house (the number of people that think that their ex is only entilted to 50% or what ever value the house was at time of split) when the case is they are entilted to there % of equity at time if sale.

So most cases its better to sell quickly or your ex benifets from massive increases. (One of my acquaintances divoced 10 years ago obtained a mesher order EX was entitled to 50% as per court order).

House when they spilt was worth 200k (they had 130k morgage) so he was entiled to 35k but she did not want to move / give him money at that time. But lucky for her the area was regenerated and house prices in her area boomed the house is valued at 945k when conditions of mesher order were met and now has to give him around 450k (arguing over what improvements were made and how much of mortgage was paid).

Best case for her is she only has to give him 400k (she thinks he should only be entilted to the orginal 50% at time of court order) forgeting she had the benefit of his money being tied up in the property so he could not use it to have his own windfall like she benifeted from.

And for this reason mesher orders are becoming less common and clean breaks are favoured.

You also mentioned debts on his part. Another spanner to throw in the works would be him declaring himself bankrupt. The trustee would want his 50% of the equity and wouldn’t be prepared to wait until the children are 18 to get it. Months, rather than years.

If you were to offer him his deposit back, which is less than his half share of equity, if he did declare himself bankrupt then the trustee would take a dim view.

Good luck OP. Really not sure what you did to receive so much negativity on here but you dealt with it with good grace. Hope everything works out for you x

"I have been advised to ask him to transfer the mortgage into my name with a charge placed on the house equal to his original deposit."

But I thought the mortgage company wouldn't allow this because you didn't earn enough. Or did you get the job you went for last month?

Thank you MozzieMagnet, I'm feeling hopeful for the future.

GloomyMonday, I was offered and accepted what sounds like a really good job, just waiting for a start date, so all good on that front.

Some assumptions being made by you worridmum- if I give him back the deposit that he put in, it actually amounts to a bit more than 50% of the equity, more than what he is now entitled to. I want to do what is morally right- he is the boys' dad despite everything. We hadn't been in the house long enough for the value to go up, prices have stagnated locally over the last year and when you take into account fees should we sell, he would end up with less than what he put in. I have had legal advice, it cost £150 for 45 minutes and a statement of advice- I'm inclined to believe my solicitor when she tells me what the likely outcome is in my situation. For me, it's not about the money, it's about stability for my children and wanting the best outcome for them. Being forced out of their home at their ages isn't the best outcome. Rents around here are double that of mortgages; I can give them a better standard of living by staying in the house.

My last post was really for anyone in my situation in case they do a search. The legal stance is actually very reassuring.

The “trust” etc route is if you can argue there was an agreement for you to have a portion of the house when you don’t have any legal ownership of it and you relied on that (eg because you did work on it, paid the mortgage, etc). It’s not relevant in your case as you are joint tenants.

Don’t mean to be unhelpful- I think you probably could delay the sale bit I’m not an expert in the area so best to get advice from a family lawyer.

Ah didn’t rdft. I see you did get legal advice and you can prevent a sale. Well done and in a difficult time.

Don’t worry about all the smug marrieds. Some women still sadly base their self esteem on being married. Of course the law should take account of child’s welfare when the parents aren’t married and it does in many cases (like your own). Good news for you.