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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33946
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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Hi Clare, I have another question for you. My girlfriend (partner)

Customer Question

Hi Clare,
I have another question for you. My girlfriend (partner) is divorced. She has in place a shared residency order. She has two children aged 7 and 9. She has 9 days her ex husband has 5. They started mediation 2 years ago and never came to a resolution on the house or finances. He started working for himself and declaring a low income. She is on Job Seekers allowance. She lives in the house with her children, he lives with his parents and his kids stay with him and his parents for his 5 days. When the house was valued for mediation in 2012 the house was £195,000. She has made all mortgage payments since and has only supported the kids financially during his time with the kids. She has paid for all extra activities and clothing expenses. They both want to come to an agreement particularly on the house. The outstanding mortgage is £107,000. The value of the house now is around £235,000. I would like to buy the share off her ex. But I can only afford £40,000. He does not and will not be making any contribution to the childrens education or extra curicula activities. How can this be resolved? We particularly want to resolve it as when I gain custody of my son, we would all like to live together.
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
What other assets are there; what income does he actually have and how is she affording the mortgage payments?
Clare
Customer: replied 2 years ago.
There are no further assets, as far as I am aware. It is hard to say how my he actually earns, because he has started a furniture restoration company working from home and earns cash in hand. He is very busy and successful. Until last month she has survived with housing benefit paying paying the mortgage. There was domestic violence involved from her ex. And whilst not convicted, the police were involved several times.
She has also had some support from her father, a small financial contribution inside the allowable threshold for her benefits.
Expert:  Clare replied 2 years ago.
Hi
Has she applied to the CMS (new CSA) for child maintenance?
Clare
Customer: replied 2 years ago.
No. When they separated, he stopped working and went on Job seekers Allowance. He has only been self employed from between 9 months to a year. She would be happy to take a higher settlement on the house than rely on regular financial support. He will never show a high income as all of his business is cash in hand. Her solicitor has written asking for a settlement on the house of £40,000 but he has not replied.
Expert:  Clare replied 2 years ago.
Hi
is the mortgage Interest only or Repayment.
If it is a repayment one how much has your partner paid off the capital?
Clare
Customer: replied 2 years ago.

Its interest only. The house was purchased for £210,000. They put in £100,000 cash from the sale of their other property and borrowed £110,000. Over payments of £3,000 off the mortgage reduced it to £107,000.

When they split, he offered her £40,000 for the sale of the house. These were in the form of threats and violent behaviour. She stayed in the house and he would return anytime he wanted to intimidate her.

He stopped paying in hope that she would be forced to sell. The benefits paid for her mortgage for a period of 2 years. Now this has stopped. I live in Spain and come and stay with her on my days off (I also keep some of my posessions there).

She wants to go self employed and I want to help her by moving in together and buying half the house. At the moment, he has a right to say who can stay in the house. And as his parents house is only 200m away from the house, so this is very uncomfortable situation for all of us. Including her kids.

Expert:  Clare replied 2 years ago.
Hi
In fact he has no right to say who she can have staying as a visitor - only who she lets the whole property to
The starting point for division of the equity is 50/50 - but he would have to wait until his youngest is 18 (or his ex cohabits) - and even then a 60/40 division in your partner's favour is likely.
Whilst the current offer is on the low side it is not so low as to be absurd, although I am afraid that child maintenance cannot be used as part of the negotiations on capital.
If there is no response then the only way forward is for your partner to apply to the court within the divorce proceedings for the financial issues to be decided.
This will lock her into a court timetable which will eventually force a resolution
I hope that this is of assistance - please ask if you need further details
Claire
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33946
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
Clare and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.
She has already completed the divorce but as there is no financial agreement I guess this comes under the same umbrella. Is there anyway the value of the house at the point he stopped paying the mortgage could be considered? Also, if I were to move in with her (and my son) before the house is resolved, would that change her case? Could he force a sale? Can she change the locks to stop him from gaining access whenever he wishes?
Expert:  Clare replied 2 years ago.
Hi
Yes that is correct the application is made within the old proceedings.
I am afraid the value of the property is the value at the time of the final financial hearing.
If you move in before it is resolved then he can insist on an immediate sale anyway - with a 60/40 division as the best achievable for your partner.
She cannot change the locks either I am afraid - unless of course she loses her keys
Clare
Customer: replied 2 years ago.
What if we decide to move away from the area, still in the UK. If she went to court to resolve the house because she wanted to live with me closer to my work as a family. Would she be likely to get the residency required? Would she still get 60/40 split?
Expert:  Clare replied 2 years ago.
Hi
That will depend on how far away she moves and whether or not the children are happy to move - it is impossible to assess I am afraid.
If she does the 60/40 split may not be achievable given that she will be moving in with you
Clare
Customer: replied 2 years ago.
Thanks Clare, this is really helpful. If I am buying his share as her partner would this effect her ability to get 60/40 split? Also, if we settled on the house, created a family unit and then due to my job we wanted to move away*****away). We would have to apply to the court, but would we have a good chance of being able to move?
Expert:  Clare replied 2 years ago.
Hi
It will make it a harder argument - but it is still possible - again if you move away the crucial point will be whether or not the children wish to go - or remain in the same area with their father
Clare
Customer: replied 2 years ago.
Thanks Clare,
I have just been given confirmation that I will be based in the UK at Gatwick. My partner wants to settle on the house and change residency order for children by going to court (she was issued legal aid due to the domestic violence case). What would herald the best chance of getting residency and a 60/40 split of the house?
I am filing for divorce and will try to get custody of my son and we want to live all together near Gatwick.
We could do it in stages and settle on the house and then all live in that house but then we would have to re-apply to the court and the house is too small for all of us. Or we apply to settle on the house and change the residency order due to moving away.
Could my partner say that she needed 60/40 due to not being able to afford to buy a house in an expensive? She will need a place to live and does not have an income. If she told the court she was moving away, they would be forced to decide what to agree on with the kids.
Expert:  Clare replied 2 years ago.
Hi
Just for clarity - you intend to move immediately the settlement is sorted is that correct?
Clare
Customer: replied 2 years ago.
Not necessarily. The house is small for 5 of us. It all depends on how timings work out. I intend to get a flat near Gatwick and drive back and forth from Cambridge. I want to get custody of my son which may take time but may not. The kids have schools that they attend and by next year two of our children will be applying for secondary school. So if necessary we may have to live a little cramped and then move 6 months to a year later.
Expert:  Clare replied 2 years ago.
Hi
So there could be a built in delay between the house issue and the children issue?
Clare
Customer: replied 2 years ago.
There could be
Customer: replied 2 years ago.

But if the courts ruled custody to the mother and the house is agreed to be sold then we would move away straight away.

Customer: replied 2 years ago.

But if the courts ruled custody to the mother and the house is agreed to be sold then we would move away straight away.

Expert:  Clare replied 2 years ago.
Hi
What contact does the father have?
Clare
Customer: replied 2 years ago.
He has 5 days she has 9 but then he also has after school on a Thursday.
Expert:  Clare replied 2 years ago.
Hi
On balance it is likely that your partner will get a 60/40 share of the property even if she is intending to cohabit with you - but the fight will be harder and you will need to balance the actual value of 10% against the cost of going to court in terms of time and money - legal aid is a loan and not a gift and she will have to repay it from the money she receives
So far as the Residence issue is concerned that is harder to predict and much will depend on the way the children feel about a move
Clare
Customer: replied 2 years ago.
The children are only 9 and 7. No children want to leave their friends behind. But if the mother has to move away because she has no home and is being offered security and a family unit elsewhere. Would the courts rule on children's feelings?
The kids are too young to put this pressure on them. The father lives with his parents but would get a place of his own when the house is settled. But he has to work, albeit for himself. So the kids would need support from Grand Parents.
Expert:  Clare replied 2 years ago.
Hi
The wishes of the children will not be paramount because they are so young.
However if the father offers a viable alternative home and the children are clearly not wishing to move then it is POSSIBLE not probable but it does mean that your partner needs to plan the move carefully
Clare
Customer: replied 2 years ago.
Thanks Clare, could you clarify "plan the move carefully". do you mean regarding co-habiting?
Expert:  Clare replied 2 years ago.
Hi
I mean when you are considering the move she needs to consider schools and housing carefully.
If the girls are used to separate bedrooms then that will need to continue
She also needs to think about Brownies and other out of school activities - plan thoroughly before speaking to the children
Clare
Customer: replied 2 years ago.

Thanks,

So in order to move and change residency order, can she apply directly to the court? She has already been for mediation for financial matters and they are writting to her to say that it has failed. Can she apply directly to change the order or does she have to attend mediation? Is mediation specifically about either finances or children or is it sometimes both?

Expert:  Clare replied 2 years ago.
HI
It is sometimes about both - BUT she does need to at least try before she starts.
However if she uses the same mediators they may well certify that it is not suitable for mediation anyway
Clare
Customer: replied 2 years ago.
Hi Clare,
I have a further question on this topic. If she goes to the court to resolve financial matters/house and they rule 60/40 on the house in her favour. Can she still choose to stay in the house if she cannot afford to buy immediately will the ruling remain in place until the point of sale even if this is years later?
Expert:  Clare replied 2 years ago.
Hi
That will depend on what the actual order says
Clare
Customer: replied 2 years ago.
Her ex Will try to prove that I live there, which I don't, but I have possessions in the property and will try to force a sale. If we can buy afford to but it then we will which will give her a clean break. But we need to resolve the house and child care.
Expert:  Clare replied 2 years ago.
Hi
As I said this is a matter that will have to be dealt with within the negotiations
Clare
Customer: replied 2 years ago.
If I live with my partner and her children can her ex husband try to claim maintenance support from me because he is on a low income and he is caring for the children 5 days in every 14? Also, at what point do we become civil partners,? How would this effect me if we split up in the future?
Thanks.
Expert:  Clare replied 2 years ago.
Hi
No he has no claim on you whatsoever
You cannot become Civil Partners as you would have to both be of the same sex to go through the necessary ceremony
Clare
Customer: replied 2 years ago.
I gues I meant common law wife. At what point can he claim against me, is it if my partner and I got married? If we had a joint account and lived together does this effect her claims on my savings/property if we split up in the future?
Expert:  Clare replied 2 years ago.
Hi
he never has a claim against you
If you live together then she will only have a claim on assets held in joint names - or assets that she makes a financial contribution to
Clare
Customer: replied 2 years ago.
And what about after marriage? Can he claim against me? Also, if she gets a good income, can he claim against her?
Expert:  Clare replied 2 years ago.
Hi
He cannot claim anything from you at any time.
He can only claim child maintenance from anyone if the children spend more nights a year with him than with their mother
Clare
Customer: replied 2 years ago.
I am about to move in with my partner in the house that is joint owned between her and her ex husband. Can he stop me or force the sale of the house? He does not make any mortgage payments, she makes them all.
Expert:  Clare replied 2 years ago.
Hi
Yes if you move in her ex can apply to the court for an order for sale which is likely to be successful
Clare
Customer: replied 2 years ago.
Thanks Clare, my parter is looking to sell the house which is what her and her ex-husband both want. But she would like to then move away from the area (2 hours drive) and come to live with me as a family unit with her children. Her ex husband has said that he will not agree to her moving away from the area with the kids so she has asked her solicitor to start court proceedings. First question is what are her chances of being able to move away with the kids. Together we would offer a house, good school, children's activities in a bigger house and own bedrooms. We would also offer an arrangement do that the father can see kids regularly on weekends and school holidays (what would you consider reasonable?).
The father runs his own business and declares a low income whilst living with his parents and supports the kids only whilst they live with him. Buying clothes and supporting kids for extra activities such as swimming lessons and gymnastics continues to be a battle. As the father will only pay for activities the kids tell him they want to do. And this only on a 50/50 basis. No support is given to the mother and she is currently on benefits.
Second question is what would be the correct order to sequence things. She can't sell the house unless she knows as can move away. Otherwise she will be forced to stay in the house. Doe she need a house in the area already or just everything agreed on principle such as schools and activities.
Finally what is likely to be the division of assets on the property. He will argue that she will be supported by me and I am on a good salary.
Thanks.
David
Expert:  Clare replied 2 years ago.
Hi
There is no way of assessing how likely it is that the court will agree the move without having some idea of how the children feel about the move
Alternate weekends plus half the school holidays and taking responsibility for the bulk of the traveling is the minimum you need to offer
It is enough to identify the area and the schools - so marketing the property can wait.
The division of the equity is likely to be 50/50 given that she will be cohabiting with you
Clare
Customer: replied 2 years ago.
What do the courts base their decision on? Is there a favour towards the mother? What would he have to prove to stop it? She needs somewhere to love and can't afford to move on her own but I would support her and help provide a better life for the kids. Their is a strong family network and support from the fathers side but he is self implored declaring a low income. He would most likely say that he can borrow from family and live in the family home with support from his parents. Would he have to prove that he could financially support them?
Expert:  Clare replied 2 years ago.
Hi
There is no gender bias at all - it is about what is best for the children.
Much will depend upon how they feel about a move; where the extended family live and what the other options are
It is not about finances at all - and lifestyle should not be brought into the equation.
Since your partner is not moving for her own job; or to be near her family but to be with her new partner you will need to show that it is not possible for YOU to move to the area in which she lives
On balance it is likely that she would be successful - but there is no guarantee
Clare
Customer: replied 2 years ago.
Thanks. The court had already ruled the residency and contact order previously. But did say circunstances could alter this in the future. Could the change to these orders, along with a financial agreement be arranged through the same court oroceedings?
Expert:  Clare replied 2 years ago.
Hi
The Financial settlement and any changes to the Children arrangements will NOT be dealt with at the same time
Clare
Customer: replied 2 years ago.

Hi clare,

My partner has agreed with her ex husband on selling her house that she is living in with her kids that is shared with her ex-husband on a 50/50 split. She is currently on benefits and will become self employed and we would like to live together with her children. We are thinking of living together as a family in the same area for one year before we try to move closer to my work. Will it make it easier to win custody of her kids if we are already living together as a family? The idea is to move closer to my work when kids start secondary school which will be in 17 months.

Expert:  Clare replied 2 years ago.
Hi
If a shared care arrangement is established then it will be difficult to move the children unless they are happy to move
Clare
Customer: replied 2 years ago.
It is a shared residency in order. But there are major problems because of the different parenting styles. The father sleeps with both children in a bed because he finds it hard to get them to sleep otherwise and he objects to taking the kids to swimming and gymnastics because the kids say they don't want to go. So my partner is made to look like the bad one who is forcing them to do activities. So the father will not make any financial contribution.
When the kids stay with my partner, the youngest is awake half the night because she is struggling to sleep on her own. Particularly for the first night or two.
Expert:  Clare replied 2 years ago.
Hi
The position remains as set out above
Clare
Customer: replied 1 year ago.

Hi again Clare,

I do not live with my girlfriend on paper as I have my own house which is classified as my main residence. But, I fully support my girlfriend financially and she has come off benefits because of it. The main question is: As the house is joint owned by her ex-hisband can he force sale because I am supporting her or only if I am living with her? And will my income be considered when it comes to council tax payments, child support and tax credits? Thanks

Expert:  Clare replied 1 year ago.
Hi
Not if you are spending less than say two nights a week with wher
Clare
Customer: replied 1 year ago.
The ex husband forcing a sale is it based on me staying in the house more than 2 nights a week?
Customer: replied 1 year ago.

We had an issue with a key going missing so had to change the locks. He has asked for a copy, which I understamd he is entitled to as he owns half the house with his ex. wife. Can he come in and out of the property whenever he wants as he states or should he ask his ex. wifes permisssion who lives there with their children?

Customer: replied 1 year ago.

We had an issue with a key going missing so had to change the locks. He has asked for a copy, which I understamd he is entitled to as he owns half the house with his ex. wife. Can he come in and out of the property whenever he wants as he states or should he ask his ex. wifes permisssion who lives there with their children?

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