Unmarried coupld splitting - help for friend please!

[Leah4]

Hi, I would be grateful for some advice for my friend. I have also posted this on leagl regarding custody.

She and her partner of 10 years is considering splitting up. They have two young children aged 3 and 7, and were engaged. He owns the house they live in and she soes not have her name on the mortgage or Deeds (yes not wise!). She has been with him since buying the property and they bought it on the consideration of it being a joint, family home. Albeit not legally. My freind has always paid for all of the children's clothes and related items,holidays, towards some bills, repairs and home improvements.

She has a small flat property which was bought 8 years ago which is rented out, and is 2hrs from their home. She has has said she could sell it in 2 years after her fixed rate mortage ends, or it will incur a large penalty before. They both want to be near the children, and schools etc. The schools in the area of the rented flat are quite bad. They want to stay in the area they are in.

My freind's DP may give her some equity if they sale the family home, yet to get another mortage on her salary would be hard.

She would like to stay in the family home,even until the children reach 18,if possible, due to schools, and hopefully less disturbing for the children. Has anyone else done this?

Her partner has earned quite alot more throughout the relationship, and she works part time. He seems quite fair to sort out something reasonable for the children. He does not think he can afford to rent privatelty.

Her DP has also talked of selling the house/remortgage to release some money, but would need to be quite a lot to buy somewhere due to friend's salary.

What do you think would could do as she no longer wants to continue living with him, as it has become very strained?

I had advised that she would not get housing benefit as she has a property.

What would a fair split of assets be?

What could she do short term, as she cannot afford to move out, and her DP says the same, and her family are in the North of England? Parents live abroad.

Her DP says she could leave and the children stay there, but she is the main carer, and she does not want to do that due to rental prices. Yet is it wise to allow the children to see such stress?

If he moved out, she would get more tax credits, which he could use to pay for another flat.

Also, how does she sort out custody - should she decide on joint care, and decide where the children's main carer will be?

Thanks

Sell/Value House. Split 50/50.
Sell/Value Flat. Split 50/50.

Seems a fair split of the assets.

I think she's being unreasonable if she wants to force him out of the house. Unless he's been violent and there are safety issues. If she just doesn't want to live with him due to personal preference then that is different.

However the legal line is somewhat different. Unless she can prove she has an interest in the property it is counted as "his".

www.resolution.org.uk/advice/livingtogether/

It seems as though its in her best interests for her to agree privatly without the need for courts what she gets.

thanks for the comments. Her DP may consider selling, but still not sure, due to the current housing market. I advised her to possibly move out and rent, and use some of the tax credits to help pay towards rent if becomes too strained to live there.

Should she do this before agreeing with her DP on properties? Don't want my advice to cause more probs for her.

Because they are not married, it makes a huge difference. Had they been married, regardless of name on the mortgage/deeds, she would have been entitled to half.

She really does need to seek legal advice.

Not sure that being married would have automatically entitled her to half of everything, but I'm splitting hairs. Fact is, the courts would be able to use their discretion under divorce law to make a fair and reasonable split of assets.

If unmarried, there is no in-built concept of fairness when it comes to division of assets. The starting point is this: they both take away what they bought and can show they bought and any jointly-owned things are divided between them.

I think -and I mean this is in a good way- to talk about the notion of what is 'fair' regarding division of assets may not apply when it comes to your friend, Leah4.

this is quite explanatory

www.contractsandagreements.co.uk/common-law-marriage.html

Basically the house is his and her flat is hers. Now she may be able to argue that she contributed towards the bills, repairs and improvements and if she can PROVE that (eg. receipts) then she could be entitled to something.

But that would have to be fought and would burn what seems to be some pretty decent goodwill on his part. Plus I doubt the legal fees would be worth the risk of losing.

So my advice would be to try to keep things amicable and get what she can out of it. But more often than not when the chips are down, he will see whats his as his.

And also whilst I understand she wants to not disturb the children as much as possible. Staying in a house that she can't really afford isn't really a good idea. Change is inevitable. You may as well grasp the nettle now and get it over and done with rather than stretch the stress out over a number of years desperately fighting for every penny.

And as for main carer. The person who has the kids the most AND has the child benefit is considered the main carer. The latter is critically important. This should be in her name and paid into her bank account.

Thanks for all of the comments and info, which I have passed on.

My friend is very unlikely to get HB as her tenant can move out in two months. If she decides to buy a property in the area she is currently living in, it will only be a 1 bed flat. If her DP sells the family home in two years to avoid the mortagge penalty, and agrees to give her some of the equity, she could buy a 2 bed flat.

She has seen a solicitor who has advised that she should continue to be the main carer as she has the children the most, and try to stay in the house, or possibly go for Schedule 1 of the Children's Act, and give her property to her DP. Her partner may consider this, but I doubt it.

Where would he live until the children are 18?
I doubt this would benefit my freind as she would not have a property once the children are 18. I cannot see him renting for such a long time, even if my friend were to give him her flat, and for it to be sold, port the mortagge so he can have a property nearby, albeit a smaller one than now. The mortgage is quite big on her salary.

This would also be very costly legally. And she would not get back anything if she were to stay in the property and pay for any work to update it. Yet Iam not too sure on this. The mortgage is quite big on her current part time salary.

Lots of things for her to think about. I think she should perhaps ask DP to sell family home, sell her flat and see what equity she can get, even in the current market. Would take some time.

What could she do in the short term as very difficult living like this? Should she possibly rent if possible and ask for the children to live with her, being the main carer? Or ask her DP to as he would then need a smaller place?

what does he want?

does he want shared residence?

in which case both people need equal size properties in same area?

Yes her DP does understands she will be the main carer, and wants to have their children stay with him on weekends and during the week. So they will need similar sized properties.

He may consider renting for 2yrs, then selling family home and flat. if my friend stayed in the property after this time, how would he afford anywhere else to live? As harder to get a mortgage on his salary, and with little equity. She is thinking that selling up would be best idea, and I can see why.