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Harris
Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2723
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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My son and his wife are separating after 16 years of marriage

Resolved Question:

My son and his wife are separating after 16 years of marriage and two children who are 12 and 9 years. He is planning to move out (while they decide what to do next) and would need to use joint. savings to rent a small flat. They will be unable to afford the mortgage on their present home AND any other accommodation for more than a year. Will he lose any rights he may have by moving out now?
He hopes that if this becomes permanent, they could sell the family home and buy two smaller properties close by so that the children would attend the same schools and childcare could be shared. If his wife changes her mind on this what are the courts likely to do?
Submitted: 1 year ago.
Category: Family Law
Expert:  Harris replied 1 year ago.
Hi, thanks for your question. Whose name is ***** ***** currently in and what is the value of the property and outstanding mortgage? Other than savings do either of them have any other assets? Are they both working and will they be able to meet their reasonable needs? What will the arrangements for the children be?
Customer: replied 1 year ago.
Hi, Thankyou for your prompt reply.The property is in joint names. it is worth approx £450,000 but was only purchased two and a half years ago for £415,000. The mortgage would have been for 25 years, I think.The 'savings' I referred to are a sum of £18,000 gifted to them by my husband and I and about £10,000 they took as additional mortgage to finance improvements which haven't been carried out. My son earns about £50,000 pa and his wife works 25hours per week and earns about £25000pa. They own one family car - a Skoda estate which is paid for and I believe have no other debts so would be able to meet reasonable needs apart from rent for another dwelling unless the present house were sold. They would need a second car. The hope is that the childrens main home would be with their mother initially so that they don't feel disrupted but that both homes would be within walking distance and childcare is really shared. My fear is that my son will move into temporary accommodation but that will be seen as abandonment by the courts and if his wife then decides she wants to stay in the family home, how will my son be able to live? Should he stay put until long term decisions are made and can his wife be made to move against her will if they cannot afford to separate because of mortgage and rent for a second place?
Expert:  Harris replied 1 year ago.
Thanks for confirming. Firstly, both of them have a legal interest (by the property being in joint names) and a right to occupy the property, unless there is a court order that excludes the other from the property. So neither of them can force the other out without a court order, and if matters are amicable then it will be best for him to stay in the property albeit live separate lives until they can reach an agreement on how things should settle. If the mother is the main carer, she will be entitled to make an application for child maintenance. Based on your sons salary (if it i gross), and him having the children overnight with him 3 nights a week or more on average, he will be liable for £60 per week for both children. If he can demonstrate that the care of the children is exactly 50-50 and he is also involved in their day to day care needs, then he will have an argument not to be liable for child maintenance. Given the disparity in their incomes, if she cannot meet her reasonable needs then she can apply for spousal maintenance in order to meet the reasonable needs. If they are unable to maintain the current home, then it will have to be sold and proceeds of sale divided between them and for both of them to be rehoused in suitable accommodation that they can both afford and that will be suitable for the children too, if they will be sharing care. The starting point regarding the current assets being split would be a 50-50 split andand ensuring that both their needs, and the children's needs are met in relation to both assets and income. The criteria considered for how the assets should be split is: 1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;3. The standard of living enjoyed by the family before the breakdown of the marriage;4. The age of each party to the marriage and the duration of the marriage;5. Any physical or mental disability of either of the parties to the marriage;6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;7. The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;8. In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. In the circumstances I would suggest that they make a referral to an independent mediator (you can find local ones here: familymediationcouncil.org.uk). The mediator will assist them both in reaching an amicable agreement which can then be submitted to the court for approval as part of the divorce. It is for the court to decide whether a settlement is fair for both of them and the children. If mediation does not help, then either of them will be able to pursue an application to court under Form A together with a £255 court fee once a divorce petition is issued. Please provide a positive rating if you found this helpful. I will not be credited with answering your question without a positive rating.
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