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tdlawyer
tdlawyer, Lawyer
Category: Law
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Experience:  11 years experience of general practice.
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My brother's wife left him a note last Sunday stating that

Resolved Question:

My brother's wife left him a note last Sunday stating that she had gone away for a few days with their 2 daughters (aged 20 and 23)
My brother has received a letter today from his wife's solicitors accusing him of emotional and physical abuse towards her. He has been instructed to take immediate steps to find somewhere else to live and to have no contact with her. He needs to vacate their house by 16 January 2015.
We have left a message with "which solicitor" but have received no response.
Thank you
***** *****
Submitted: 2 years ago.
Category: Law
Expert:  tdlawyer replied 2 years ago.
tdlawyer :

Thank you for your question Janet. My name is***** can assist with this.

tdlawyer :

It sounds like she is asking for him to move out due to an allegation of abuse.

tdlawyer :

Does he accept what her solicitors have said about the detail of the reason for being asked to leave?

JACUSTOMER-kmth3om2- : Hi Tony
JACUSTOMER-kmth3om2- : no he does not
tdlawyer :

Hi. Okay. Then he has a choice. Either he leaves now and looks for somewhere else to go to, pending resolution of this issue (however that might be), or he stands his ground and exercises his right to stay (assuming, of course, that he owns the house too or that he has some other right to be there).

JACUSTOMER-kmth3om2- : Yes, he does own the house. Why would he leave? Wouldn't that be lan admission of guilt?
JACUSTOMER-kmth3om2- : his wife and older daughter are currently at an undisclosed address. His younger daughter wants to remain neutral and is visiting him today
tdlawyer :

No, not at all. What he might say, for example is: "I have a right to remain in my house and I deny the allegations made. However, to avoid any confrontation or difficulty, I am prepared to move out for a period of x weeks to seek to resolve any issues that you believe exist"

tdlawyer :

If he refuses to leave, then she has a choice.

tdlawyer :

Either she returns and carries on as before.

tdlawyer :

Or...

tdlawyer :

She applies to the Court for an order requiring him to leave and stay away pending resolution of the dispute at trial.

tdlawyer :

These things are difficult because they're always very fact dependant. It depends on what a Court thinks about whatever the allegations are before it. But you can imagine, the Court will have to weight the evidence it has before it at the time of application (which is considered more of an urgent process) and the Court rarely has the chance to examine witnesses etc. and work out who's telling the truth at this early stage.

JACUSTOMER-kmth3om2- : According to the letter sent to him, if he has not vacated the premises by 16 January his wife has instructed her solicitor to apply for a court order to instruct him to leave. My frustration is that we have very limited time and that with the weekend and Christmas it is going to be very challenging to find a solicitor. I should also mention that both my parents died this year and my brother has inherited a reasonably large sum of money. Given that the abuse which my sister in law is referring to happened well over 10 years ago, I think that this behaviour is being driven by financial opportunity.
tdlawyer :

I see, okay. Well, you might be right about the financial opportunity and if there is a Court hearing, then he must set this out the Court an explain his position. Obviously, he will be told about any Court hearing like this.

tdlawyer :

It may be difficult, but you should be able to find somebody on Monday or Tuesday next week, or at the latest, in the early part of January as they're not proposing to do anything until 16th January.

tdlawyer :

So if he has decided he does not want to move, then he should have time to see a solicitor.

tdlawyer :

It's not ideal, of course, but he just needs to do the best he can. he should keep notes of who he tries and when etc., as if he does struggle because of Christmas, then the Court will consider this if there is a hearing.

JACUSTOMER-kmth3om2- : I think that my brother is totally bewildered by what is going on. He had no idea that this was going to happen, he appreciated that the marriage was not 100% but actually thought that things had improved recently. What we really need at the moment is some good advice about what is best to do. If you think that we can probably get hold of a solicitor on Monday that is good.
tdlawyer :

You should be able to do this, yes, and that whole process should be reassuring when you have somebody to speak through and go through the detail with.

JACUSTOMER-kmth3om2- : Is the 16 th January a reasonable period of time given that we have Christmas and New Year holidays ?
tdlawyer :

It's impossible for me to say what he should do - other than take the letter to a solicitor - because the factual detail is important. What I would say, however, is that if the issues concerned are from 10 years ago, there seems no reason to require him to leave now, if there is no immediate danger said to exist to her.

tdlawyer :

Whether 16th Jan is reasonable depends on the urgency, and on her allegations. If she was saying, for example, that he was physically beating her after drinking on an evening, then yes, it's a reasonable period.

tdlawyer :

If the allegations are that he shouts at her every now and then, then it's not likely to be sufficient to require him to leave in such a short period or perhaps, even at all.

tdlawyer :

This is why taking advice based on the specific allegations made is crucial for him.

tdlawyer :

He should be able to find somebody Monday, of that I have little doubt.

JACUSTOMER-kmth3om2- : And what if his wife and older daughter shout and yell at my brother. Does he have any recourse then - sorry I hate that this is all so one sided
tdlawyer :

If the allegations go the other way too, then yes, they're relevant. But what should happen in terms of who should be allowed to remain depends on many facts - the Court has to sit between the parties and do the best it can and try and help what it considers to be in the "weaker" position in some respects.

JACUSTOMER-kmth3om2- : Ok so what I plan to do between now and Monday is to sit down with my brother and document his response to each of the allegations in the letter. Should we also outline the circumstances ie that having lost both parents unexpectedly and in a horrible way, my brother has been withdrawn and not felt able to give his wife assistance with her parents who are very sick and live*****away. Is there anything else that we can do to prepare for the appointment?
tdlawyer :

Yes, all of the factors and information you set out is very important.

tdlawyer :

The facts are the only thing you need to worry about for the meeting. The solicitor will go through the legal options based on those facts.

tdlawyer :

If you see somebody on Monday then you still have quite a bit of time, so it would be sensible to get an appointment Monday if you can.

JACUSTOMER-kmth3om2- : Thank you. The letter refers to emotional and physical abuse, intimidation and harassment. Where can I find definitions of these accusations so that we can discuss and respond to them in contet before we meet with the solicitor
tdlawyer :

Give them their everyday meaning - you don't need to think about legal definitions.

tdlawyer :

The letter is written with your brother in mind as a lay person ... he should respond as such and not try and do the lawyers job for him, that's what creates problems.

tdlawyer :

Just be open, hopen and frank with the solicitor. This is very important.

JACUSTOMER-kmth3om2- : So are you saying it should be based on what my brother perceives as the definition of these accusations?
tdlawyer :

Yes, absolutely!

tdlawyer :

He just needs to tell the solicitor everything about the allegations he can conceivably think to be relevant.

JACUSTOMER-kmth3om2- : And presumably anything which is relevant in terms of his wife's behaviour towards him
tdlawyer :

Yes, that's right.

JACUSTOMER-kmth3om2- : Ok thank you. ***** have any further questions which I think of later can I come back to you? If so do I have to pay again?
tdlawyer :

You can come back to me yes, and you don't have to pay again.

tdlawyer :

Can I just check you're happy with the service provided today?

JACUSTOMER-kmth3om2- : So should I just leave the chat open ? I want to be able to refer back to our discussion. Yes, I am happy with the service that you provided today.
tdlawyer :

Thank you. No, you need to rate the answer and then if you wish to come back later, you can still do that anyway.

JACUSTOMER-kmth3om2- : Ok will do. Thank you very much for your help. P
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Category: Law
Satisfied Customers: 1096
Experience: 11 years experience of general practice.
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Expert:  Clare replied 2 years ago.
HiYour brother has no reason to worry unduly.Unless there has been recent physical violence then there is no basis on which the court will grant his wife an Order which excludes him from the property.The only cases where emotional abuse has been sufficient involved minor children which is not relevant in his case.Giving effectively a months notice is not unreasonable per se and there is no need to keep any record of attempts to see a solicitor.This is a threat to issue proceedings - even if she goes through with it will have to be made on Notice and that will give your brother more time to seek legal advice.What your brother should do is write to the solicitor and say he has no intention of leaving at present and any court application will be resisted on the grounds that there is no reason to grant such an order. However since it is clear that the marriage is at an end he should say that he is willing to attend Family mediation to discuss the divorce and the financial settlementClare
Customer: replied 2 years ago.
Hi. Does my sister in law have a right to enter the premises when my brother is out ? I am concerned that she will come to the house and take what she wants
Expert:  Clare replied 2 years ago.
Hi
Yes please understand - this is the matrimonial home and they both have the right to live there and come and go as much as they please unless there is an Order excluding them because of physical violence of because a financial order has been made within the divorce proceedings.
There is no need for your brother to rush into anything - he can wait until the New Year and see a solicitor then nothing will happen between now and then
The wording of the letter is meant to frighten your brother - so there is n need to worry about them at this stage - the only real worry is whether or not she can prove recent physical assault.
Whilst emotional abuse is now recognised as abuse it is not enough to ensure an Occupation Order unless there are children involved.
he does need to respect the fact that she wishes to have no contact with him.
The real decision he has to make is if he agrees that the marriage is at an end - if so then he should start considering the financial outcome and it is worthwhile doing this sooner rather than later as it may effect how he feels about the property
Clare

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