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Thomas Judge
Thomas Judge, Family Lawyer
Category: Family Law
Satisfied Customers: 32978
Experience:  Over twenty-five years experience
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My wife and I live in a Housing association flat that's soley

Customer Question

My wife and I live in a Housing association flat that's soley in my name. We have four children, two biological children aged 4 & 9 and two boys aged 16 & 19 from a former relationship of mine. If my wife and I separate and she claims custody of the smaller children, is she likely to succeed in forcing me out of my home?
Submitted: 1 year ago.
Category: Family Law
Expert:  Thomas Judge replied 1 year ago.
Not necessarily because you have the older children still needing to be accommodated. Even if you do split there is no necessity that you would have to move out of the property in any event - unless she or indeed you apply to the court for either a change in the tenancy or an occupation order. Happy to discuss. Please remember to rate positive.
Customer: replied 1 year ago.
Sorry Mr Judge, but your answer is contradictory. First you say no then you say yes, if she applies for an Occupation Order. I already knew as much when I downloaded the 1996 Family Law Act. I can't pay £26 for a "maybe, maybe not" answer. The question is, would the younger children trump the older ones?
Expert:  Thomas Judge replied 1 year ago.
The law is a funny beast and this is why one can not always give a yes or no answer. The fact is that there is nothing to stop you from applying for an Occupation Order or indeed an Child Arrangement order that all of the children should live with you - courts are not terribly keen on splitting siblings - even where there is an age gap.
Customer: replied 1 year ago.
We can continue? Now I feel better. I could apply for an Occupation Order for myself? Even though I already have the tenancy? How does that work? I would love to keep all the children together but I assumed that I would never win custody, being a man. Anyway, I would be happy with weekday custody, I think that the kids should have the benefit of both parents. I felt that I'd have a chance to win that but if she won the flat, I'd have no home to offer them, not to mention, their school is 400 yards away. I hope really that we can make an amicable Separation Agreement but I worry that once the ball starts rolling, my flat will suddenly seem like the key to winning.
Expert:  Thomas Judge replied 1 year ago.
It rather seems that you should be applying to the court for a child arrangement order -Follow these steps to apply for a court order.Read the guidance - http://hmctsformfinder.justice.gov.uk/courtfinder/forms/cb001-eng.pdfFill in the C100Send it to your nearest courtIt costs £215 to apply for a court order. You can apply for an occupation order if things are or become uncomfortable for the children. The sex of a parent is not something which the court considers in these cases. Please rate positive.
Thomas Judge, Family Lawyer
Category: Family Law
Satisfied Customers: 32978
Experience: Over twenty-five years experience
Thomas Judge and other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
Rated. Thank you Mr Judge. Your latest answer surprised me though. I would like clarification but I'm about to cook. Could I get back to you later or tomorrow?
Expert:  Thomas Judge replied 1 year ago.
Yes you can
Expert:  Clare replied 1 year ago.
HiAn Occupation order is unlikely to be made in this matter unless your ex resorts to violence.The question of which of you should remain in the matrimonial home - and which should be rehoused by the Local Authority is a matter for agreement between you following discussions using Family mediation - www.familymediationhelpline.co.,uk - or for decision by the Court within the financial side of the divorce proceedings - and attendance at a Mediation Information and Assessment meeting is the first step in thatmaking a pre-emptory applictaion to try and secure the Residence of the Children is not a wise move and is likely to back fire badly.Instead a trip to the local housing office with your wife to see what options would be available to each of you before deciding how matters shoudl proceedClare
Expert:  Thomas Judge replied 1 year ago.
Hi I am not in agreement with my colleague in this case. That can happen when two lawyers have different opinions. This is after all how courts work. You have seen my view on the matter. Firstly residence orders no longer exist in the courts. They are now Child Arrangement Orders and they have been since March 2014. Secondly an Occupation Order would be an appropriate order in a case such as this - they don't just about to domestic violence. I would be delighted to answer further questions as I am sure Clare would.
Customer: replied 1 year ago.
I have been looking at mediation. I don't want to escalate or appear to escalate. I went to my housing association to add my wife's name to the tenancy so that when we separate, we can both be housed. They advised me that they would not house both of us and that if I added my wife to the tenancy, she could force me out. The only way that she would be rehoused would be if I wrote to her to tell her to leave and she could then take that letter to the local authority and declare herself homeless. Even then, she would only be housed (initially at temporary accommodation) if she had the children with her. This all sounds too desperate. I have no intention of punishing my children or my wife with this. When I looked at the Family Law Act, I saw that even if I don't add her to the Tenancy, if we agree to separate without agreeing who will go where and how, she could force me out of the flat. It's clear to me that that's a possibility, my question is, what is the probability – in courts these days? At the same time as I don't want to punish, I don't want to be punished.
Expert:  Clare replied 1 year ago.
As you will have noticed I did not refer to a "Residence Order" - I referred to the issue of with which parent the children should reside.In addition whilst Occupation Orders can be made where there is no violence there would have to be a prolonged period (months) of a poisonous domestic atmosphere for the children - you can read the case law herehttp://www.familylawweek.co.uk/site.aspx?i=ed43513You have clearly researched the matter carefully and are now aware that the name on the tenancy is not relevant!However neither are matters as bleak as has been suggested by the Local Authority.The first thing to say is that your eldest child is no longer part of the equation since technically at least he is an adult.However that still creates a situation where even if your wife and the younger children remained in the current property then you and your younger son WOULD still be the responsibility of the Local Authority to rehouse - and you could raise a strong argument for a three bedroom property to facilitate the time the younger children spend with you.Equally if it is decided that you and your son remain in the current property and the children spend time with you there then your wife would have to be rehoused with the younger children - although it is potentially more likely that she will be offered a two bedroom property especially if the younger children are of the same sex AND of course there may be a period in temporary accommodation for whichever of you is looking for housingAnother option is to look for private rental for whichever of you is moving out - whichever parent it is will be able to claim Housing Benefit if they are financially eligible.To be honest your two cases are very finely balanced and without a great deal more background there is no way of truly assessing which was a Court would go IF agreement could not be reached.However instead of taking the word of the Housing Association speak to the local Housing Office - or Housing Charity to get a clearer view of the options - although it is likely that a Consent Order will be needed to ensure that you achieve whatever is agreedClare
Customer: replied 1 year ago.
Hi Clare, your answers show your extensive knowledge and experience and your careful and and accurate use of language provided me with the concise and useful capsule of information that I need. You also provided links to support and augment your statements. Thank you.
It's becoming clear that the separation between my wife and I will become acrimonious. She has stated that she will use the law to attempt to eject me and my sons from the family home and to take sole custody of our two daughters. She intends to claim that I am an unfit parent. I have no stomach for an undignified duel of accusations. I would like to keep all the siblings together, keep the family home intact, ensure that none of the children have to move out or change schools and give my wife visitation rights every weekend. I would like to support my case only with evidence that I already provide a caring, safe and nurturing environment for all the children and there's no reason why I won't in the future. I earn a low income, I'm self employed and take home around £1500 per month but I have very flexible working hours. I have the time to take the kids to school, shop, cook, collect them from school, attend open evenings and school journeys and help with homework.
Ideally, we won't go to court, we'll find our way to agreement through Family Mediation. My wife is refusing to consider that now but I can see that it's inevitable that we'll do it at some point. The Family Mediation I have looked at will cost £100 each, per session. Not possible. Do you know a way we could do it on line, perhaps on Skype, at a more reasonable cost? I am tempted by the offer on this page for an On Call solicitor for £26 per month with a free one week trial. Would I be able to book you? How would that then pan out if we finish up in court?
PS. Would you like me to write a review?
Expert:  Clare replied 1 year ago.

Legal Aid is available for Mediation - have you checked your eligibility?

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