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Ask Clare Your Own Question

Clare, Solicitor
Category: Law
Satisfied Customers: 33006
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My wife wants a divorce but will not move out of our marital

Customer Question

My wife wants a divorce but will not move out of our marital home.
I am disabled in so far as my lower back pain has prevented me from working for the past 5 years. My spouse does not relish the thought of caring for me in my worsening condition. A recent hospital procedure to help my condition has been cancelled due to high blood pressure. I am having difficulties controlling this with the pressures of sharing occupancy of our marital home whilst she appears to relish seeing me in pain. No children are involved.
To enable any kind of control of my blood pressure to get the hospital procedure I need, it would be better to have space to get my own help. I am incapable of any move to alternative accommodation, whilst my wife is working and controls all finances and has support of friends and family to cope with any relocation.
I am desperate to have my own space to cope with the divorce and my ongoing health issues.
How can I get her to move out?
Submitted: 3 years ago.
Category: Law
Expert:  Stuart J replied 3 years ago.
Do you own the property?
Customer: replied 3 years ago.

Yes. Joint owners mortgage outstanding £8k ish. Value approx. £200k.

Expert:  Stuart J replied 3 years ago.
Why should she move out as opposed to you?
Customer: replied 3 years ago.

I thought I'd covered that in my first script.

I am incapable of making a move due to to my condition, have no income other than ESA DLA, do not have any support.

She is working , has her health and support of relatives and friends.

I need to get my blood pressure down so that I can get the treatment necessary for pain relief.

Expert:  Stuart J replied 3 years ago.

I am afraid to
tell you that that is not a reason for you to stay in the house and for her to
move out. She is quite within her rights to stay in the property as indeed you
are because firstly it is the marital home and secondly, it is in joint names.

There appears to
be no allegation of violence.

In which case, it
will be a case of dealing with the house in the ancillary matters of the
divorce and either you buying her out, her buying you out, or the house being
sold and the proceeds divided.

On these facts,
assuming that you have a longer marriage, the proceeds will be split 50-50

I appreciate it
is not what you wanted to hear but there is no point in me misleading you.

Can I assist any
further with this? Please bear with me today because I will be online and
off-line clients.

Please don't
forget to positively rate my answer service (even if it was not what you want
to hear). If you don't rate it positively, then the site keep your deposit and
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If in ratings you feel that you expected more or it only helped a little,
please ask. Thank you.

Customer: replied 3 years ago.

  1. I have seen the note below:

    Ask the court for a removal order, which will give you temporary possession of the home and force your spouse to move out while the case is heard. Removal orders are generally granted when there is danger of physical abuse.

    Why is it I cannot get this on the basis of the facts stated.

    ie. I am suffering and unable to get respite due to having to live in the same property. This is as bad a case of abuse, just as if she struck me to cause pain. If the tables were reversed, the courts would side on the so called weaker sex and evict me.

Expert:  Stuart J replied 3 years ago.

I think I am missing something here. What physical abuse ?

You are at liberty to move out into another house in the interim pending divorce.

The sooner you get divorced the sooner the house is sold

Customer: replied 3 years ago.

to spell it out

the stress of her gloating at my visible painful condition is not helping me to get my blood pressure down to be able to get the hospital procedure i need to get respite from this pain - does that not constitute physical abuse because if i was to cause her some discomfort in her home i would be accused of abuse.

i think i must be writing something that is not being read

Expert:  Stuart J replied 3 years ago.

I'm sorry to have
to tell you that by no stretch of even a very vivid imagination is that
physical abuse or grounds to get an occupation/ouster order.

I appreciate that
that is not the answer you wanted but there is no point in me misleading you.

By all means ask
a solicitor to make the application and don't take my word for it, but be
prepared to be disappointed. To be frank, on these facts, I would be very
surprised that the solicitor agreed to make the application for you. Sorry

Customer: replied 3 years ago.

this is a sexist society favouring the female in divorce proceeding. like i said, if i were the female making this inquiry your responses would be different. because i would be seen to be the aggressor praying on the weaker sex.

so it is ok for one party to make the situation untenable without any course of action available, don't think so!

also the fact that she has financial control does not constitute aggression on her part. if i had financial control there would very soon be action against me.

Expert:  Nicola-mod replied 3 years ago.

It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Expert:  Clare replied 3 years ago.
I am afraid I need some further information before I can answer
How much is the house worth and how much is outstanding on the mortgage?
What other assets are there and what actual income do you both have each month?
Customer: replied 3 years ago.

I don't see why the house value is relevant, but it is stated in reply earlier, "Yes. Joint owners mortgage outstanding £8k ish. Value approx. £200k." Contents maybe £10k. Cars maybe £3k. Her income less than £1k. My benefit £500.

These are not relevant to the facts but understand all details would be taken into account, more so for how much a solicitor would want.

My grounds for temporary possession, not ownership.

Also my knowledge of construction, this being my trade, is far superior to hers for the benefit of maintenance, I am able to ensure the works done are to current regs. And I have successfully maintained the property to date, doing much of the improvements to increase its usefulness and consequently its value. Much of this was with this kind of disability in mind as we aged, not thinking that it was to be so soon in life, I am 56 and spouse 55.


Expert:  Clare replied 3 years ago.
Have divorce proceedings actually commenced?
Customer: replied 3 years ago.

My spouse muted her advice was to action a fast track divorce based on my unreasonable behavior. My so called unreasonable behavior being trying to generate a pension fund for our retirement. This was investing in property of below market value for the purpose of renting for a return. The funds were to be used from the equity of our property, both parties involved.She did not agree with the idea, but suggested I could do it with my share of the equity, to protect her from liability should I fail and loose my investment.

At the point of taking legal advice it had been agreed that she would generate an agreement to protect her share and I would be liable for the interest incurred. Instead she took the advice to seek a quick divorce and reduce the overdraft facility without my knowledge to stop any such investment.

I am not aware of any official action.

Expert:  Clare replied 3 years ago.
Just to check - have you actually got any other assets together or separately
Customer: replied 3 years ago.


Expert:  Clare replied 3 years ago.
I appreciate that I am asking a lot of questions - but the aim is to try and find a route through this for you
How large is the house?
Customer: replied 3 years ago.

4 bed semi

Expert:  Clare replied 3 years ago.
How much does a one bedroom property in the same general area cost?
Customer: replied 3 years ago.

I know where you are going with this, house value is not the issue.

We may not get a quick sale, it may take 6 months+, whereas i need urgent assistance to get my BP down to enable me to get the hospital procedure I urgently need. It is not going to be enough because it could trigger a heart attack or stroke. This may be what she is hoping for, but of course for me it will be too late. As I have explained in earlier script that health reasons I am not in a position to move.

No 1 bed houses in the area, but a Flat would be £90k.

Expert:  Clare replied 3 years ago.
I have been giving your position a great deal of thought.
Whilst I do fully appreciate the position that you are in all the Case law involved with Occupation Orders (what you would be applying for) shows that the violence has to be by direct assault.
The only case that diverges from that in any way was based on the fact that two children were exposed to the continual verbal violence between their parents
You can read more here
No matter how I look at it I am afraid that I do not think the court will grant you an order - not when the property is so large that you can both live there leading reasonable separate lives.
A more realistic option is to agree to an immediate sale of the property -and to an immediate divorce - maybe based on her Unreasonable Behaviour.
I am very aware that this was not the news that you wanted - but sadly it is an accurate reflection of your position.
Please ask if you need further clarification
Customer: replied 3 years ago.

I don't think you have considered anything with regards my health.

I am in constant pain and unable to get hospital treatment until my BP is low enough to consider me for the treatment. My treatment was cancelled this week by the surgeon because my BP was too high. Until this part is sorted out I am unable to get the treatment I urgently need. Are you reading the script? I feel that I have to repeat my case to get any reaction. It seems that I would be better off making my own application if that is allowed and argue my own case in front of a judge. It is incorrect of you to assume that we are both living a reasonable life in such a big house. The house has one bathroom, one kitchen etc. The situation favours the female in these cases, but I intend to argue my case. Apologies if I appear abrupt but I am in a great deal of pain at present.

Expert:  Clare replied 3 years ago.
I have in fact considered your health carefully to see if it could be brought within the precedent of Grubb - v Grubb.
Realistically however I do not think that that the court is going to agree that it does.
Had you been living in a smaller - one bedroomed property then I would have been a little more hopeful - but where the only shared rooms need be the bathroom and the kitchen I simply cannot see the court agreeing that some form of rota could not be sorted.
You are fully entitled to make the application in person but please consider very carefully how much worse your ex's attitude will be if you apply and fail - this for me would be a major concern.
If you do apply please above all else do NOT mention in court your belief that there is a gender bias involved - even if you were the wife in this particular situation I would be giving exactly the same advice and the court woudl take your assumption very badly - so more ammunition for your ex

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