Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I ask if the money given by your husband to your son was a gift or a loan please or was it never discussed?
It was a loan
Thanks. Was this documented anywhere in correspondence or otherwise? Does your son admit as much?
No documents but son knows and intends to pay it back when convenient to both of us.
Thanks. It would be worth documenting between he and his father that this was a loan for the avoidance of doubt. A short email acknowledging as much or a letter would suffice. This is because there is a legal presumption in the absence of evidence to the contrary that money given by father to child is a gift.
May I ask if your sons girlfriend was to move out of the property, would she be able to afford alternative accommodation if their child was going to live with her do you think?
Yes I'll do that. What about girlfriends rights? with regard to house
She is not working but I think her parents would help her financially
Thanks. Finally has she contributed any capital at all to the property (other than maybe outgoings)?
Her only contribution would be about £4000 in furnishings which was a cash gift from her father
Thanks. On the basis that she has not contributed towards the capital of the property the starting point is that her position is that of "excluded occupier". This means that she has the barest minimum of tenancy rights and is only entitled to reasonable notice from your son to leave.
She would have no claim to the capital of the property in her own right but would be entitled to those possessions she has purchased for the property.
She can apply for an occupation order to allow herself reasonable opportunity to find another property if your son asked her to leave which may give her the right to remain for several months.
If it were not for their child together this would be the end of the matter however the position is sibject as follows because of their child.
Would it be a stonger case if the £4000 was immediately repaid to her/father? Would the furnishings then be classed as my sons property
In addition to maintenance entitlement if she has custody of the children, she can if they cannot agree apply under schedule 1 of the Childrens Act and a judge has discretion to make orders in respect of the property for the benefit of their children until they reach 18 years of age or finish full time education. He may consider an order that the property is made available to his partner until such time as they reach 18 or finish education or some other financial order in respect of the property whereby a greater share of the equity is made available to her. The judge's determination will depend greatly on your individual levels of income and circumstances.
So its a bit subjective what may be her legal position wrt to living in the property. Will my son always have the right to live in the property.
A principle aim of a judge will be to secure a home for his child. Once that is achieved the focus will switch toward reasonable maintenance provision. A judge would take into account both your sons and his partners financial cirumstances in making any orders. Although the above legislation places a singular importance on the welfare of his children if necessary at your sons expense it does not seek to disadvantage your son to your partners benefit as an end in itself.
In terms of child maintenance in general terms the highest net weekly income that the Child Support Agency can use for the purposes of a calculation is up to a maximum of £2,000.00. The basic statutory provision for 1 child would be 15% of net income though credit would be given for nights the child spends with your son. After this an application to the court would be required for a "top-up" under schedule 1 of the children's Act.
There is a useful calculator here:
That seems to be all I require. Thanks for your help