Non-molestation and occupation order

[Hida7]

Looking for advice..

My partner has recently filed for a non molestation order and a occupation order. The courts told us the bail in place for his ex is stronger than a non-mol order (she attacked her 17 year old and was arrested and released on bail). the occupation order is because he went on holiday and he came back to his ex-wife who had been out of the property for a year and a half had changed the locks and moved in. But he lived there with his 2 children who are 16 and 17 so cannot share a room. The eldest at 19 has moved on (although they are claiming she lives there) He is going through the occupation due to them currently living with me and my 2 children in a 3 bed house so obviously there isn’t space to stay and in his joint owned property there is 3 bedrooms and a loft room. (Just her and new partner living in house)

when the papers were served the next day she filed a non-mol on him saying he has dv, controlling behaviour etc and she is scared to leave the house and has no job and can’t afford rent. (The mortgage is over 1k and she has two jobs) if he files a statement with proof from the police he’s never been charged with anything even though was arrested and was always no further action, social services have placed the children with him for safety, as well as Facebook posts of her working and on holiday will it help or is it a waste of time? Basically the whole statement is full of lies and he has proof to back each one up. He Also letters from the mortgage company and proof of properties that are affordable. He’s sent divorce papers but they keep getting ignored or “lost” by ex.

TIA

I think that the bail conditions will indeed be stronger than a non-mol. There are some interesting aspects to this case that I am not experienced enough to fully understand but it might be worth asking a solicitor whether the ex-wife's new partner can be removed from the property. The ex-wife presumably has a right to live there but another adult living in the property could cause a massive headache, especially if they are contributing to the mortgage.

Beyond that, can you advise how long they have lived apart? Is it the 18 months or longer?

She left the property from march 2022.. returned when he was abroad and changed the locks June this year. Doesn’t see the children, SS have advised them to steer clear. Yes she and him are both on mortgage, they agreed to sell and now she is refusing and said it needs to be forced.

Very confusing!

Ah okay. Now, if it was agreed to sell, was that ordered by the court, in a consent order, a separation agreement or something informal?

It was only in text messages nothing formal. He does have a hearing for the occupation order this week though. He has 2 children with him and it’s just her that “should” be in the house

That means nothing has really been agreed. If the text messages still exist they may carry some weight but they're not generally seen as very reliable evidence.

It also means he cannot just go to court to force a sale. Instead, he needs to get a full financial order including what happens to the house. Once he has done that, then he can seek enforcement if necessary.

It also makes it difficult to know what to do about the new partner. It is a potential problem that they are there, especially if they are paying the mortgage (or some of it) because it can create a constructive trust. However, it also means a court is more likely to think the house should be sold as the two of them should be able to house themselves rather than depend on the ex.

In terms of divorce, he could apply based on her unreasonable behaviour but the easiest thing to do might be to apply for a unilateral no fault divorce. Then invite her to mediation. After she fails to turn up twice - which seems likely - get signed off and apply to the courts.

Just doing some research on it, and she won't sit down and agree to a full financial order i suspect so can it still be done if one person refuses? The partner isn't paying towards anything. It was paid through someone elses bank account that doesn't live in the house and then my partner received a phone call from the partner asking for his half back! (which he did not!)

She has said the only way the house will be sold is if she is forced to by the courts?

He is going to do the divorce thing you suggested. This is what he has been looking into. Thank you for you detailed responses they are really helpful.

Oh yes, it can still be done. He needs to get a financial order as part of the divorce which is likely to include a sale of the house as she does not need to house the children and has a partner who can help with her housing costs. After that, this may need to be followed up with enforcement but hopefully the ex will sell up before even the financial order reaches a final hearing to avoid the expense.

Thanks so much for your advice its been really really helpful!

To correct this a little, he cannot apply for divorce based on unreasonable behaviour. This ceased to be possible in April. The only grounds for divorce are that the marriage has broken down irretrievably. No fault divorce is the only form of divorce available.

Sorry of course. I did my family seat a year ago now 😬Don't worry, I don't plan to return to that area when I qualify!!