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Ask Harris Your Own Question
Harris
Harris, Law Specialist
Category: Law
Satisfied Customers: 2784
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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My husband is filing . He currently has a property

Customer Question

My husband is filing for bankruptcy. He currently has a property in his name that I want to live in with our children because the mortgage payment is low. I'm happy to pay the mortgage on it because I can't afford the rent of a similar property. There's currently tenants in the property who can be given 4 weeks notice to move out. Would I legally be entitled to move in this property to provide a home for our children?
I'm currently a full time student (I'm 31) because I wasn't earning enough from my self employed income. We both decided when we were married I should go and get a degree to help for the future. He's a police officer who's wage pretty much supported us for 3.5 of the 5.5 years we were together. I'm in my second year of a 4 year course, and can't go and get another job with having sole custody of the children and being a full time student. Would it be unrealistic to claim for spousal maintenance to go towards rent on another house if I'm not entitled to live in the house he owns?
Submitted: 1 year ago.
Category: Law
Expert:  Harris replied 1 year ago.
Hi, thanks for your question.
Have you commenced divorce proceedings and have there been any court orders made regarding the finances / assets?
As part of divorce proceedings you are entitled to make an application for financial relief. As part of this you and your husband will need to provide full and frank disclosure of your financial positions and the court will decide what a fair settlement would be in terms of various factors including your children's needs, your needs and his needs as well as the following:
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 (e.g. a right to your husband’s pensions).
In terms of the property which is currently being rented out, as this was not the matrimonial home you do not have automatic rights to occupy the property but given that you have the care of the children there can be negotiations, and a potential order for it to be used to house you and the children.
The first point of call in such matters is to attempt mediation (you can find local mediators here: familymediationcouncil.org.uk), if mediation is successful the agreement can be submitted to court for approval once Decree Nisi is granted. If mediation is not successful you can make an application for financial relief for the court to make a decision on the finances.
Please let me know if you have any further questions regarding this.
Customer: replied 1 year ago.
I don't really feel my question as answered and there was no mention of the possibility of applying for spousal maintenance considering I'm a student as a result of a decision we made together and that his wage solely supported us for years.
Expert:  Harris replied 1 year ago.
Apologies, the rest of the message appears not to have sent - yes you are able to apply for spousal maintenance to meet your reasonable needs. However, it is likely that he (and the court) would want such spousal maintenance to be time-limited so he would likely seek an undertaking that you complete your qualifications and attempt to maximise your earning capacity in order to discharge his liability for spousal maintenance.
In relation to the children, you would also be able to apply for child maintenance and his legal liability for this would be dependant on his gross income and how many nights a week on average the children stay with him - if you can confirm these details I will be able to confirm what his legal liability would be.
Customer: replied 1 year ago.
Yes I would only be seeing to apply for spousal maintenance to cover rental costs of another property until I am qualified Solicitor at the end of my degree. The children are currently seeing him once every 10 days. His standard wage is £34,000 a year but he earns extra income through playing sport and renting his house out of an additional £8000 per year. However I've heard he's given up his sports job, probably to downgrade his pay. The house currently earns £5400 a year income.
One child is biologically his. The other he sought legal responsibility through the courts for in 2012, because she had no contact with her biological father with a view to adopting her. For the past year she's seen her biological father for 5 hours per month. We've agreed a figure of £400 per month for both children at present.
Expert:  Harris replied 1 year ago.
Thanks for confirming - the child maintenance figure seems about right based on a gross income of £34,000 from his general employment - however this would likely increase given his other sources of income.
In terms of spousal maintenance liability this is more complicated to confirm as you would need to disclose your reasonable needs and he will need to be able to provide an amount to meet those needs.
If he is limiting his earning capacity this can be contested and he will need to demonstrate that he is making efforts to maximise his income.
Expert:  Harris replied 1 year ago.
Hi, this question remains open. Please rate my response positively if you found it helpful - I will not be credited for answering this question without a positive rating. Thank you!