Help please! Desparately need advice for my sister - estranged dh being total arse

[galaxy]

At the beginning of Sept, my sis found out her dh was having an affair which had been going on for 5 weeks and he declared he was in love with new woman and wanted to split up. They have been together for around 25 years, married for 1 & have 3 kids; 2 under 16 and 1 at college.

New woman has 3 school age kids including 7 month old baby!

He is being a complete arse; he introduced eldest dd to woman who declared her love for dd's dad! This was before my sis even knew!

Anyway, sis told him to leave after about 3 weeks as he was basically coming and going when it suited him & it was unsettling for the children. The youngest is seeing a counsellor at school and the middle one has just started his GCSE's and is finding this so hard to cope with. Particularly as he has has been bragging about how well he's bonded wih his new family, taking the son to football etc (something he has never taken his own son to) So he's moved in with new woman (who is on benefits so he shouldn't actually be living there full time). He's continued to pay mortgage so far but made suggestions about sis moving out and him taking over house for his new family!

Sis works 24 hours and takes home £450 a month. He takes home £2300 a month. Mortgage is £800 (about 16 years left to run) and they have a £300 a month loan.

Sis has been trying to get him to formally sort out an ageed amount that he will pay monthly and has written to him, tried talking to him but to no avail.

He hardly visits his kids and when he did bother to visit on Saturday, took his son to the bedroom and basically slagged sis off, saying she was getting it easy and he was skint. Poor kid was really upset by it!

She has been to see a solicitor on a free 1/2 hour session who told her that she's not entitled to legal aid as there's equity in their house. He's told her to go for a divorce which she agrees is the best option but has no money to pay for the solicitor so can't.

She's doesn't really want to stay in the house as it no longer feels like home but knows that if she suggests selling it, he'll just demand to move his new family in. He won't be able to raise any money to buy her out so she's really stuck.

She is having to work (had a week off unpaid as she works term time only so not entitled to sick pay) and is doing an NVQ for work which she's now about 2 months behind. He got 2 months off with "stress" fully paid (and boasted on Facebook about what a lovely relaxing time he's having).

She really is at her wits end and to add to her trooubles, she had a massive row with her eldest dd (who's a Daddy's girl) and has moved out to her BF's mum's house (who not surprisingly wants her to leave soon. Sis asked dh to give the BF's mum some money for "keep" and he refused.

She really doesn't know what to do. She's been told that if they sell the house, she'll not get council accomodation as she's made herself homeless, if she moves out, he'll move new family in & she'll still be homeless and worse off.

The final thing is that he's coming into the house when he pleases, sometimes when she's not there and when she asked him not to, he said he can do what he likes as he's paying the mortgage (solicitor confirmed she can't legally change the locks).

Has anyone any advice please? I am trying to do my best to help her emotionally and with practical advice but don't know what to do for the best. she is making herself ill and I'm really worried about her.

I think you can pay for the divorce out of the proceeds of the house. I think legally he has to house the 2 younger children, she is entitled to spousal maintenance.

Your sis needs to stay put, get the house on the market & divorce him, even if she has to use the equity to pay for private rented she needs to move on with her life by the sounds of it.

She needs to get onto the CSA and start claiming for child maintenance, has she contacted Child tax credits and informed them he is no longer living there?

Thanks for post.

She has contacted child tax credits and they have messed things up! She contacted them 6 weeks ago and they agreed to transfer over from dh to her. On Monday she rang to chase and was told there was a problem and she needs to re-apply with copy of youngest dd's birth cert as they have her as being a non-UK resident! so that's another worry about how she will pay for Christmas!

She'll only get £550 from CSA 9for 3 of them as dd still at college) but he is still paying mortgage so she hasn't gone down that route.

I agree with you about her moving into rented - they have 18 years left on mortgage so roughly will pay another £170k over that period - current equity is about £80 so I think they should cut their losses now.

What's spousal maintainance?

If you have been married for over 2 years then you can claim it - it's maintenance money for her, she gave up her job to look after the dc, home etc

Can't you now claim for a share of your husbands pension too?

Galaxy - if the current equity on the property is only £80k in total then it shouldn't automatically exclude her from being eligible for legal aid. Tell her to check the legal aid eligibility calculator here to check her details.

Far be it for me to disagree with another solicitor but the criteria for legal aid is fairly complicated and it seems that her circumstances do warrant the need for immediate legal advice.

Just as a guide - disputed property (joint savings, pensions etc.) is automatically excluded for the calculation as is the first £100k of the equity of the family home. Her disposable income should be less than £698 per month - even with her DH paying her housing costs, she should automatically pass the income criteria. Her wages will be added to any child benefit and/or tax credits but she can deduct a certain amount per dependent so she should still be under the threshold.

I hope she's able to qualify. If not, some private solicitors offer a fixed fee for issuing divorce proceedings I think. The Law Society or CAB may be able to give some recommendations in her area.

Hope that helps - she's lucky to have you as a sister

Sorry I haven't been on - laptop crashed just after my last post on Friday and only just got fixed!

I've done the legal aid calulator and you can't have more than £8k capital in your house to qualify. So effectively, they have to sell the house to be able to afford to get divorced. Then she is voluntarily homeless and stuck

It seems ludicrous to me.

I spent all day with her going through her finances. They live a frugal lifestyle and even so, and even if they sell the house and pay of their debts, she still won't be able to make ends meet.

i hate to hear things like this. hes a scumbag, shes a benifit cheat ,GET ON THE HOTLINE NOW.i hope your freind gets a good layer .she must not leave the house and she should sue the other woman for wrecking her marriage and name her in divorce , she might get financial compensation.what a bastard her h is how could he bring the kids to meet the other woman before they split up????

Apply to the CSA anyway. He can claim that he is paying your share of the mortgage, you can claim rent from him in respect of your share of the house. Equals out in the end, more or less.

And don't take any notice of what the other party's solicitor says. He is not acting in your best interests - he is acting in his client's best interests.

Galaxy are you sure that it's £8K equity?? I thought it was £108K.

I have to agree with Freckle, don't think the 8k figure sounds right. I used to do legal aid work a few years ago and am pretty sure that if the house was 'subject matter of the dispute' then the majority of the equity was disregarded. You need to get your sister to double check this.
In any event galaxy, even if your sister can't get public funding (legal aid) this doesn't mean that she can't go ahead with a divorce. With the right support and advice she should be capable of completing the forms herself and acting in person in relation to the divorce. She will obviously need to sort the finances out and if her husband continues to be a twat when it comes to that, she will ultimately need to make an application to the Court. The District Judge will not have any jursidiction to make an order on the finances until Decree Nisi has been pronounced, therefore it is sensible for her to issue divorce proceedings sooner, rather than later.
However, the Courts to not have the power to make an order with regards to child maintenance (although they can approve any agreements reached between the husband and wife if incorporated into a Consent Order) Previously the CSA dealt with child maintenance however on 1st November 2008 the CSA was replaced by the Child Maintenance and Enforement Commission. They will have greater powers than the CSA and maintenance will be assessed on gross as opposed to net income (CSA was 15% for 1 child, 20% for 2 and 25% for 3 or more children of net income - namely gross less tax, NI and pension contributions)
The new Commission will have greater powers of enforcement than the CSA had and enforcement options include the removal of passports from non-payers and there will no longer be a need to acquire a liability order from the Courts before enforcement action can be taken
BTW lulabelle, you were given incorrect information by your ex's solicitor regarding not being able to claim CSA. Like Freckle says, he was acting in his client's interests (lying little git!)
Galaxy, if your sister wants to go ahead with a divorce she can do so immediately on the basis of either her husband's adultery, or his unreasonable behaviour. I know one poster suggested naming the other woman as co-respondent but to be honest, it is preferable not to do so (no matter how tempting it may be) If named as the co-respondent she would become a party to the proceedings and would need to be served copies of all the papers and would also need to file an acknowledgement of service form. It is far preferable to say that he has committed adultery with a woman whose name she knows but does not wish to name. If acting in person, she will have to pay the Court fees (around 350 pounds) but she should seek a claim for costs against her husband in the petition so hopefully would get this back). I could give pages of info on here on how to complete the necessary forms but don't want to bore everyone but if she does want advice on completing the forms, just shout on either relationships or legal and she will get the help she needs.
Last piece of advice, SHE MUST NOT MOVE OUT! She will make herself intentionally homeless and will get NO assistance from council/housing association. I know there are a few family lawyers on here so if she needs more advice, I'm sure she will get it on here. Good luck to her x

thank you so much for all your advice. mumoverseas, I spoke to her again last night and worked through some "numbers" that she can discuss with him regarding the return on investment they would get if they don't sell the house and the renting option for the next 23.5 years( the term of their mortgage). By far, the renting option is best.

He is supposed to be going round 1 night this week to talk finances and I gave her some suggestions about how to control the conversation so that he sticks to the point and doesn't start slagging her off but I know she is really worried that he'll just continue to shout her down and walk out rather than talk things through.

I'll send her a link to this and hopefully she'll feel able to post herself for some continuing advice and support.

have just re-done the calculator and get the same response - she's not eligible:

To be eligible for CLS-funded help for Legal Help, Help at Court, Family Mediation, Family Help (Lower), Family Help (Higher) or Asylum cases: Legal Representation before the Immigration and Asylum Tribunal; and the High Court and Other Legal Representation, you should not have more than £8000 in capital.

???

Galaxy, get her to go and see a solicitor with a franchise for legal aid for family work. The £8K limit on capital relates to disposable capital and I think she could argue that the value of the property is not disposable, particularly when it is the subject of the proceedings. Do not just go by what the website appears to say.

exactly Freckle, the equity in the matrimonial home is not disposable capital if it is subject matter to the dispute. They just try and put people off by putting duff info on their websites! What area is your sister in galaxy? If in Surrey/Sussex I may be able to recommoned a good family lawyer that has a legal aid franchise

Hi Galaxy - you need to specifically calculate the equity held in your home on a different criteria. The relevant part of the legal aid code is in Volume 2F here but I've copied and pasted the actual bit I use to calculate capital to be assessed.

"Under the regulations the value of the subject matter of any claim in respect of which a person is seeking funding is required to be left out of account in computing the capital of that person...In calculating the value of the client's interests in any resource of a capital nature which is owned jointly or in common with any other person, the assessing authority in its discretion will normally assume that the asset is owned in equal shares.

This situation only applies to capital assets. It is a very important rule in the context of family/matrimonial cases. It means that assets which are being fought over in relation to the dispute for which funding is required, where the client's interest in those assets does not exceed £100,000, must not be taken to account* when assessing capital.

Where a client's main or only dwelling in which he resides is the subject matter of dispute:
Step 1) Apply the mortgage disregard (actual mortgage or £100,000 whichever is the less) to the value of the property to establish the total amount of equity within the property; Multiply this figure by the client's percentage share of the property.
Step 2) Apply the subject matter of dispute disregard of £100,000 to the client's share of any equity within the property.
Step 3) Apply the Equity disregard of £100,000 to the remainder (if any) of the client's share of the equity within the main dwelling."

I know it's all very complicated but in plain english (!) this is the calculation your sister needs to do:

Market value of the home
less mortgage or £100k (whichever is less)
divide by two (for her half interest)
less dispute disregard (£100k)
less main dwelling disregard (£100k)

Take what's left over added to whatever her other assets are (savings, ISAs, shares etc.) remembering to divide by 2 as disputed property. If all of that is over £8k then your sister is not eligible....

this is why it sometimes takes nearly an hour just to assess legal aid eligibility - the government really don't have a clue do they

Wow, Thanks! The equity is assumed to be around £120k excluding sale fees. They have no savings so If I've read it right. she wont be eligible?

She's just been on the phone in tears as her daughter is now spreading rumours that she's been chuced out by her mum!!!!

mumoverseas she is in South West Surrey

Galaxy for your sister that her DD is getting involved in what should remain a problem between her Mum and Dad.

On the subject of legal aid (sorry to bang on about it) how much is the mortgage? If it's more than 100k then you have to ignore the difference and just deduct 100k from the market value. Once that's done the "equity" left has to be divided in two, then another £100k deducted for being disputed property and after that another £100k for being her main dwelling. It does sound like her share in the house should be discounted from her disposable capital. There are numbers available on that website I linked to that she could try to call and get the calculation done over the phone for her. She could then take that to a local legal aid practice to indicate that she is indeed eligible (fingers crossed).

Mumoverseas has an excellent point that she can start the divorce anyway so that she can make an application to have the court start financial proceedings. It takes about three months to get to court during which time each party has to disclose their assets, income, do statements etc. which is plenty of time for them to agree on a more realistic settlement for her. That could be selling the house and splitting the equity in her favour since she officially has residence of the two kids under 16 or even her staying in the house until the youngest child reaches 18. Even if it's agreed the house be sold, the court order can be expressed in a way that the word "consent" is not included thereby meaning that she won't have made herself intentionally homeless.

It's a long old battle whether she gets a lawyer or not tbh particularly if her H is inclined to be an arse and dig his heels in. The sooner she gets some semblance of control over the situation the better though otherwise the mortgage may go into arrears and repossession may become the only option available to both parties. Sorry to be scary but lots of my clients sometimes don't deal with things until it gets to that point and I'd hate your sister to find herself in that position.

cashncarry, I know what you mean about clients. Loads of mine used to have 'ostrich syndrome' and totally buried their heads in the sand in the hope it would go away, but sadly, it didn't.
galaxy, having a complete mental block about SW Surrey (have clearly been away too long!) I can recommend a few good lawyers in Dorking or Horley that are good and a couple of them do legal aid (public funding) in the event that she may be eligible which I agree with Cashncarry may be possible.

Thank you both for taking the time to add your advice.

H was supposed to be meeting her Weds to talk through options but backed out to deal with a "new family" emergency!

She sent him an email telling him she wanted a divorce and his agreement to go to mediation. He called today to say that he is going to see a solicitor and will then talk to her.

Dd coming home tonight apparently - we'll see!

I will send her the link to the website and suggest she calls for advice.

Your help is really appreciated..