Hi, thank you for your question. You raise a few issues and I will deal with these separately:
Hi, I note you have left a negative rating. Please could you confirm what you are not happy about so that I can provide you with all the information you require to resolve this matter.
Given that you were married abroad and the marriage certificate has been misplaced, you are able to apply for leave to proceed with a divorce simultaneously with the divorce petition using form D11 and a £155 court fee. You will need to accompany the application with a statement explaining the steps you have taken to obtain a certified copy, if you have a photo of the certificate or a photocopy then this can be attached and you will need to prove that a marriage did take place by outlining this in the statement.
Matrimonial home and Finances
As the property was the former matrimonial home he has matrimonial home rights arising out of the marriage which can be registered on the title - which he appears to have done. This remains on the property until divorce is finalised or a financial settlement is reached and unfortunately cannot be removed before this.
Despite this, if he is no longer living there you are free to rent it out if you wish. The only impact the home rights have is that he has a right to occupy the property until divorce unless there is a court order stopping him returning.
If he is living there and you have left, you can apply for an occupation order to return to the property immediately and the court will assess whether such an arrangement is suitable.
If he is working or has assets then you should seriously consider pursuing an urgent application to court for maintenance pending suit (this is spousal maintenance until a final decision is made regarding the finances). This can be done immediately and even before divorce petition is issued. You can also pursue a financial relief application to deal with the wider matrimonial finances to include the former matrimonial home.
The children have a right to a relationship with their father and this can only be reasonably restricted if there are child protection concerns - which you have raised. If you stop contact and there is no order in place it would be for him to make an application to court to see the children and formalise the arrangements - at this point due to the nature of the domestic violence allegation, the court may seek to have this investigated and for an assessment to be carried out to ensure that he is not a risk to the children.
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Thanks - unfortunately, as you are married it is not as straightforward as being compensated for your contributions as there are various factors that a court will need to consider when dividing assets, such as needs of children and both parties at the time of the application. The starting point for a court is a 50-50 split of all matrimonial assets and initially for this to be departed from based on needs - therefore if you remain the main carer of the children it would be expected that your needs will be greater and therefore the division should be more in your favour.
His new property will need to be disclosed as part of negotiations or financial proceedings and this will be used in order to meet the needs of children or both of you if required.
You will both need to provide each other with full and frank financial and income disclosure, as well as disclosure of your reasonable needs. The Court's starting point is a 50-50 split of all matrimonial assets and ensuring that both your needs are met in relation to both assets and income. The criteria considered is: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.If you have any further questions regarding this please let me know. In the meantime if you found this information helpful please provide a positive rating using the stars at the top of this page. I will not be credited for answering your question without a positive rating. Thank you
I do not see how this would be possible as you would be deceiving the land registry which is a government organisation given that a marriage has taken place and the only issue is that the marriage certificate is not available. Nonetheless as the property is in joint names with your mother, he would only be able to pursue a claim for a share from your share, unless he can demonstrate that your mother's share is actually your interest.
Thanks - from what you have said you will need to seriously consider making a return to the family home with your children which can be done if you obtain an occupation order to remove him from the property and prevent him returning - this can be done using form FL401 to your local family court. When you return to the property you will be able to consider applying for benefits to meet the interest payments on the property - depending on what benefits you are receiving and your circumstances at the time.
In relation to contact, if the safeguarding concerns regarding the father continue you are within your rights to stop contact until he can assure that there are no child protection concerns and it will be for him to apply to court for a child arrangement order to see your children. Given the seriousness of the concerns it may initially be appropriate for contact to take place on a supervised basis until he can demonstrate there are no concerns.
Given that matrimonial home rights have been registered, to remove this registration you will need to prove that a marriage has not taken place. Again you should be aware that you cannot deceive the land registry - just because the documents are not accessible does not mean you can inform them that there was no marriage.
If you were to seek to return to the property to occupy it, then you have reasonable grounds to apply for an occupation order to remove him. However, as he has registered his home rights and is allowed to occupy the property, applying to court to force him to move out so that you can rent it may prove difficult as the court will need to assess his housing needs first before deciding whether to remove him.
The home rights notice does not prevent a sale, however the potential buyers of the property will be informed of the notice and the potential interest that he has in the property - it is for the buyer to decide whether to proceed with a purchase or not.
I see, I was under the impression that he was living in the property. As he is not living there it makes it easier for you to sell and if the buyer proceeds, it will be at risk of potential delay in case there is a contested financial application arising out of the marriage/relationship and it is correct that the solicitors may hold the proceeds of sale until financial matters are settled between you.
If you move away and it impacts his arrangements to see the children, he can apply to court to stop this and it will be for the court to decide whether you should move with the children or not. As he likely has parental responsibility for the children (by virtue of marriage or if he is named on the birth certificate) then he must be consulted if the children are to change schools.