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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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my stepdaughter and partner are separating;they have been together

Customer Question

my stepdaughter and partner are separating;they have been together 7 years but are not married. They have one child (4 Years old) and have a joint mortgage to which the partner wishes to be removed from however my stepdaughter is not in a position to be solely responsible for the payments. He is also looking for part payments on fixture and fittings etc and token payment for past payments jointly paid e.g contributions towards rent/mortgage, could you please give us some advise on my stepdaughters legal position, thanks.
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Joshua :

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.

Joshua :

From what you say do I understand correctly that your daughter and her partner jointly own the property together? Is there any equity in the property to your knowledge?

Joshua :

From what you say they have one child together. Have they discussed custody?

JACUSTOMER-o5f6rz05- :

Custody will be with the stepdaughter who already has an older child.

Joshua :

Thanks. Could you also help me with my other query regarding ownership and equity of the home. Ill repost just in case it didn't come through...

Joshua :

From what you say do I understand correctly that your daughter and her partner jointly own the property together? Is there any equity in the property to your knowledge?


JACUSTOMER-o5f6rz05- :

Equity not sure about it, but the house is part shared ownership scheme they own a third of the property £20.000 deposit was given as a gift by partners father which I believe is written in the mortgage agreement as a gift.

Joshua :

Thanks. OK the position regarding the property will be that unless they made specific written arrangements regarding the deposit paid when they bought the property, then unless they agree otherwise, each will own 50% of the property. Other than that subject to what follows (which is very significant) each will be entitled to take what they purchased. In terms of payment of rent, her partner will not be entitled to this back. If he made greater than 50% contributions to the mortgage and the mortgage is a repayment (as opposed to interest only) mortgage he may have a claim for such additional capital payments but that is likely to be a minor ir even irrelvant issue given what follows.

Joshua :

As you will be aware your step daughters partner is required to pay maintenance for his child. However in addition to maintenance entitlement if she has custody, 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 child until they reach 18 years of age or finish full time education. He may consider an order that the property is made available to your step daughter until such time as their child reaches 18 or finishes 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.

Joshua :

A principle aim of a judge will be to secure a home for her child. Once that is achieved the focus will switch toward reasonable maintenance provision. A judge would take into account both of their financial cirumstances in making any orders. The above legislation places a singular importance on the welfare of his child rather than your step daughter but to some extent at least the two can go somewhat hand in hand.

Joshua :

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 as discussed above which can include provisions with regard to the property.

Joshua :

There is a useful calculator here:

http://www.cmoptions.org/en/calculator/calculator.asp

Joshua :

In terms of requiring his name to come off the mortgage, if he were prepared to make a gift of his 50% share of the property this is a possibility but as you say it would require the consent of the mortgage lender and the housing association which owns the other share of the lease under the shared ownership lease. The lender is unlikely to agree if your step daughters income is not enough to support payments under the mortgage. If agreement cannot be reached, her partner can attempt to force a sale, but any such attempt can be considered as part of any application she made under the Childrens Act as above and as we have discussed, a judge has a wide variety of orders he can make in terms of the property to ensure that their child has a roof kept over their head. This can mean that the status quo is maintained as frustrating as that could be for her partner.

Joshua :

If there is general agreement in terms of how to deal with the property, and the only obstacle is the lender, then if as parents you are willing and able to help, some lenders will accep parental guarantors as regards ***** ***** but not all lenders do or will.

JACUSTOMER-o5f6rz05- :

Regarding the purchase of fixture and fittings how do you determine who bought what without receipts - with regards ***** ***** full time income and my stepdaughters part-time income whilst she brings up the child. Please can you give us a advise on future payments towards the mortgage if the partner fails to pay and is my stepdaughter then accountable for full payment.

Joshua :

Fixtures and fittings can be an area of frequent disagreement or dispute because as you suggest it is rare that peple maintain comprehensive records of ownership. So far as possible individuals will try to agree what belongs to whom; where this is not possible the burden is upon the person claiming an item is theirs to show on the balance of probability that it is theirs. With the advent of internet shopping this can be easier than in the past as often email records can be found to show a purchase or credit card records used to trace ownership but this can be a bore for items of lesser value. If they cannot agree then either can apply to court to resolve a dispute and a judge will decide based on evidence that can be shown and ultimately if not on what he thinks is fair based on who he believes.

Joshua :

If certain fixtures can be shown by your step daughter to be needed for the maintenance of their child they can however be included in any orders the judge makes under the Childrens Act

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

JACUSTOMER-o5f6rz05- :

could you just clarify please my stepdaughters best approach for mortgage payment if the partner refuses.

Joshua :

Certainly. As things stand they are joint debtors and both have an equal obligation to pay. If payments are missed it will adversely impact both their credit histories so whether they agree or not, payments should be made in the meantime or they will damage their respective abilities to obtain credit generally. If they cant agree, the best policy is toagree to disagree but ensure payments are made, until the agreement is resolved amicably or otherwise. If he simply refuses despite being reminded of the above then she can only do so much in terms of making payments. She should speak to the mortgage company to explain the situation and continue to pay what she can and consider applying for maintenance and / or an order under the CHildrens Act in order to regularise the position

Joshua :

Is there anything else I can help you with?

JACUSTOMER-o5f6rz05- :

Thanks very much for your help things are much clearer.

Joshua :

A pleasure.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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