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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33324
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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my son is in going through mediation process of divorce.They

Customer Question

my son is in going through mediation process of divorce.They have two boys 3 and5 years.
they have house worth £530 k with no mortgage (but which was purchased with help of 280k loan agreement with me.
His wife wishes to continue to home-educate children -but he prefers they go to local school-and she gets a job. She is studying a degree and hopefully court will agree she sends chidden to school within 2 /3year period
I am prepared to make a loan to her so she can buy reasonable house to bring up grandchildren.i wish there to be some control over the loan so that it is secured on house
and remains in place for benefit of children when they are older. I do not expect her to repay loan -but do not wish her to use it for any other benefits than the children Can you advise on this?
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is XXXXX XXXXX I will do my best to help you but I need some further information first.
How much does a three bedroom property in the same general area cost to buy?
Clare
Customer: replied 2 years ago.

Between 180/190k for reasonable3 bed.


If shared equally they would both have 125k equity left after sale of their house and repayment of my loan.


I would then make a new loan of 62.5k to each of them to give them £187.5 to buy their houses.


i would want to secure the loan money so that it is only used for house purchase(s) in the future and can be passed to the two children when the reach 25.The loans to reflect the percentage growth in house value over the period.


 


The wife already has a 12k car

Expert:  Clare replied 2 years ago.
Hi
How os the care of the children going to be shared between them?
Clare
Customer: replied 2 years ago.

my son will have to pay spousal allowance separate to the loan agreement.He has them 2 days week.She wants this to continue until they are18 -but although he would like children in school asap -he is willing to pay spousal money for 2 years.They both have 40k in savings -she has 8k car

Expert:  Clare replied 2 years ago.
Hi
How much do they each earn?
Clare
Customer: replied 2 years ago.

only my son earns £50k -she earns nothing, now she gets some benefits(approx £400m)

Customer: replied 2 years ago.

my son earns £50K YEAR,- she earns nothing, but now gets benefits.


 


she has £40k savings


 


She now says court will favour children over loans -not sure about that?


 


She says she does not acknowledge loans and needs £250k to buy house.


 


 


 

Expert:  Clare replied 2 years ago.
Hi
It is true that the court will certainly not force her to accept a further loan from you on those or any other terms.
However it is clear that if the house is sold and your loan paid off there is still amole equity to allow her to purchase a property mortgage free - and to release a lump sum to your son to use as a deposit on an alternative property - with or without a further loan from you
Given that she will receive a larger share of the equity (80/20))the issue will be whether she has that in full and final settlement of her claim for Spouse Maintenance - or whether your son will have a charge back on the new property with his share to be received when she cohabits or the youngest child attains the age of 18 - and he continues to pay spouse maintenance
I appreciate that this is not the news that you wish to hear - but do please ask if you need further details
Clare
Customer: replied 2 years ago.

Thank you for your reply . Would the court order the loans to be repaid prior to any settlement?

Then would she get 80% of equity to buy a house in full and final settlement and does this include spousal maintenance? If this is the case what income would she live off - if she is allowed to home educate the children? My son would prefer them to go to school. Would the court order them to go to school and her to work?

This would leave my son with only approx £60k to put a deposit on a new house and he would have to take out a new mortgage - how could he afford to pay maintenance as well?

We do not understand the alternative you mentioned - how would the charge on the new property work and how could it be repaid if she is still living in the house?

What spousal maintenance would he be paying and for how long?

 

She is currently refusing to recognise the loans at the mediation meetings, although we have concrete proof from our accountant. Do you think we should go to court for a ruling or should we offer her half of the equity of the house for a final settlement? We are trying to balance our best approach (i.e. to go to court or to make an offer) as he has other assets such as

 

half share in a field worth £20k

Discretionary trust share worth £40k

 

Would our best approach be to make an offer to waive the loans (i.e. 280k - 140 k each) and if so how could I ensure that the money would eventually go to my grandchildren?

 

 

Expert:  Clare replied 2 years ago.
Hi
So far as the loans are concerned it seems clear that whatever she is saying in mediation they are binding - and if you wish to ensure that your grandchildren benefit then the way forward is for you to enforce them on the current property and then offer them to your son to help with his housing
His ex will need 80% of the equity (after your loans) to purchase her new house
Given your son's other assets I am afraid that she may be entitled to that in any event - in which case spouse maintenance will be payable
However he could offer her the 80% in full and final settlement - no spouse maintenance payable - she will however still receive child maintenance and any benefits that she is entitled to.
If it were not for the other assets then he could have considered retaining a charge on her new property for a percentage which she would have to pay when the youngest child is 18 - selling the house to do so if necessary
So far as the schooling issue is concerned that is not dealt with within these proceedings - your son will have to start separate Children Act proceedings to resolve this
Clare
Customer: replied 2 years ago.

My son is now thinking he maybe should have applied for custody of his children.


We have an example of her not coming home, staying out overnight- she was meant to collect children - andhe had to call police in the morning -and he was unable to go to work -until she was finally traced late in afternoon.


He has evidence that she has used drugs -with photo of her under influence. He has seen her hit children (but would be unable to prove easily). There is evidence of instability, mental problems in her family.


 


Is there any chance? I could help ensure they were well brought -up

Expert:  Clare replied 2 years ago.
Hi
Who has been the main carer of the children until now?
When did he see her hit the children?
Clare
Customer: replied 2 years ago.

The main carer has been his ex-wife. He didnt actually see her hit the children but she told him that she had hit the eldest one as he was annoying his brother sometime back in Dec/Jan and there was a bruise round his eye.

 

To clarify the drug issue he has a picture of a text msg from her boyfriend stating that he has found some potential suppliers for mdma and coke for them.

 

She also reguarly drank a bottle of wine per night during the marriage and has attempted suicide in her youth by paracetamol and her father has bi-polar disease of which he suffers depression and needs regular medication.

 

 

 

 

 

 

 

 

Expert:  Clare replied 2 years ago.
Hi
When did he see the text?
Clare
Customer: replied 2 years ago.

My son does not like the home educating of his sons and feels they are missing out on a full education and the chance to mix with other children their own age.How would the court rule if it were proposed that the eldest goes to the local school and the youngest to nursery? It would also give his wife the opportunity to work , part-time at least.(This is presuming he does not have custody)


If you feel there is a good chance of his getting custody, -how would he be expected to support her and the children?

Expert:  Clare replied 2 years ago.
Hi
i am sorry but nothing that you have said makes your son gaining Residence a likely outcome unless he can prove that she is taking drugs
The issue of Home education is an entirely separate one I am afraid
Clare

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