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Harris
Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2851
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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I've been separated months and have not been

Resolved Question:

Hello, I've been separated for 15 months and have not been allowed into the FMH since that date, I had been paying the mortgage up until I lost my job in February but since March I have not made any payments and the only payments made have been benefit payments which do not cover the interest on the mortgage. The Ex-wife does not work saying she has to look after our 20 year old partially disabled son (has mild learning difficulties) this in fact is the opposite to what he needs as he is more than capable of holding down employment and more than once successfully attended work experience where he got glowing reports. She keeps him at home because it helps her benefit needs.
I am now after 7 months working again but I have also moved into rented accommodation as I lived with my parents for 7 months rent free while I was unemployed and it enables a 27 mile commute as opposed to a 60 mile commute each day. Now that I'm working again the wife's solicitors are asking me to make mortgage payments but I don't have the funds and the fact that she cannot afford to make a 50% payment either invalidates there claim. What are my rights and I did hear that because I have not been allowed back in the FMH and I want to stress that this is not related to any physical or verbal reasoning she just didn't want me back I am entitled to make a claim for rental against her which will effectively give her 70-80% of the mortgage payment? I want to sell the FMH and split the Equity however this will affect her benefits so I'm looking for advice as to what her claims are against myself.
Submitted: 2 years ago.
Category: Family Law
Expert:  Harris replied 2 years ago.
Hi, thanks for your question. I am a qualified family law solicitor.
Can you confirm if there are any court orders in place?
Customer: replied 2 years ago.
No court orders are in place. Decree Nisi granted and as yet No Form E has been exchanged by either party
Expert:  Harris replied 2 years ago.
Thanks for confirming.
Legally, as there are no orders or risks against her from you, you are entitled to return to the home to continue residing there. However, practically I am not sure if you will be willing to do this but you could reach an agreement for how to occupy the home together (eg. who has use of which bedrooms, reception rooms etc), until matters are finalised.
Even though she does not work, as she is caring for your son she may be entitled to, or already receiving, benefit payments regarding this such as carers allowance and it would therefore be in your interests to commence financial negotiations and disclosure so that full financial positions and needs are obtained before you commence negotiations regarding any form of payments or maintenance. During these negotiations full and frank disclosure has to be made (from both you and her) regarding income, assets, earning capacity, financial needs and the situation regarding caring for your son will also need to be clarified, as if he is able to work and does not require the care that she is stating he needs, then this would likely increase her prospects to work.
I would suggest that you consider commencing financial negotiations, and it may be in your interests for this to proceed under a financial relief application to court under a Form A as this gives a strict timetable for exchange of documents and disclosure, whereas voluntary negotiations can be open-ended and she has no duty to comply with any requests for disclosure, and given that she has not responded to requests for mediation this may be the same if you attempt voluntary negotiations.
If you do pursue court proceedings regarding this, you can attempt to negotiate for a sale of the house and then for it to be split according to contributions made and the needs of you, her and your son. The court will take your sons needs as a priority given that he is disabled. If she receives any equity from the property which affects her benefits then she will have to disclose what attempts she will make to obtain employment to meet her needs - if she has no prospects of employment then the court will look at whether you have the resources to provide maintenance to her - this can be negotiated to be time-limited, for example until she obtains paid employment as the courts are strict that parties have to do all that is possible to provide for themselves.
Customer: replied 2 years ago.
In my original question, I made reference to myself making a rental charge against my wife in respect of the FMH as I have not been living in the property - can you please clarify as this is something I have heard is an available option
Expert:  Harris replied 2 years ago.
As she continues to occupy the property, it is usually the case that she should be meeting the mortgage payments. As she has not then you could charge her "occupation rent". However, the facts would need to be assessed as to the terms of you vacating the property. If you are free to return to the property (which you technically are as there is no order preventing you) then she could argue that she should not be liable for "occupation rent", however, as a Decree Nisi is in place your argument would be that you can no longer be expected to live in the same home as her given the breakdown of the relationship and that in the absence of her meeting the mortgage payments she should be liable for "occupation rent".
The potential "occupation rent" that she would have been liable for can be looked at when agreeing on how the property is to be split upon sale if she is unable to afford to pay this on an instalment basis.
Again, it would be in your interest to consider pursuing a court application so that this situation does not continue without certainty for you, her and your son.
Harris and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.
Thank You
Expert:  Harris replied 2 years ago.
Thanks and good luck. Please do come back if you have any questions in the future - you can ask me directly here: http://www.justanswer.co.uk/law/expert-london-solicitor/