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Stuart J
Stuart J, Solicitor
Category: Family Law
Satisfied Customers: 23746
Experience:  Senior Partner at Berkson Wallace
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I am enquiring on behalf of my mother in law who cannot

Customer Question

Hi there I am enquiring on behalf of my mother in law who cannot speak English. Her husband had assaulted their 9 years old child about 10 months ago and he has not lived in the family home since. My mother in law has also not left the home since. She gets help from friends with shopping and dropping her son to school, we have done a home rights form online. But we would like to know whether her husband can sell the house while they are living in it or if she was to go on holiday and he changed the locks would she be able to do anything about it?
JA: What steps have you taken? Have you filed any papers in family court?
Customer: No not yet we are getting advice first
JA: Family Court normally sits in a local County and Magistrates' Court. Do you know the location of the court? If not, what county do you live in?
Customer: yes I do we live in the uk
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: no that is all
Submitted: 13 days ago.
Category: Family Law
Expert:  Stuart J replied 13 days ago.

Hello. Thank you for the question. It is my pleasure to assist you with this today.

Please bear with me as I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

Were Police and social services involved? if not why not?

in who's name the mortgage/deeds?

and does she wish to start divorce proceedings?

Customer: replied 13 days ago.
police and social services were involved. The deed to the house is on her husbands name. She does not want to but if needed she will.
Customer: replied 13 days ago.
Hello?
Expert:  Stuart J replied 13 days ago.

You don’t say whether she owns the property jointly with her husband or not.  Assuming not, then a Non-owning spouse needs to immediately register a Matrimonial Home Right Notice against the property.

It will stop the other spouse spouse selling or remortgaging the property.

The form to send to the land registry is here:

https://www.gov.uk/government/publications/notice-of-home-rights-registration-hr1

the owning spouse spouse will get notice of the application but cannot do anything about it if this is the matrimonial home.

The application is free.

It is the matrimonial home and it doesn’t matter whether it’s in one sole name or the other sole name or joint names,  each spouse has the same financial interest in it.

The name on the deeds is irrelevant if the couple are married.  It may not necessarily be 50-50 because that depends on a whole variety of different facts such is the needs of the parties, the length of the marriage, needs of children et cetera.

If the house is jointly owned, then he cannot sell the house from underneath her without committing fraud.

A person who believes that they are being bullied or who has been a victim of domestic violence or coercive controlling behaviour, can apply to court for a non-molestation order to prevent the other person coming within 100 m of them and an occupation order for the alleged perpetrator to move out of the house.

Here are the government webpages on exactly this subject. https://www.gov.uk/injunction-domestic-violence.

A range of people can apply to the court: spouses, cohabitants and ex-cohabitants, people living in the same household (but not employees), tenants, lodgers, boarders, and certain relatives such as parents grandparents, in-laws, brothers sisters, and engaged couples.  So basically people who are in a close relationship either physically or family or living together whether that’s in a relationship or just the same house.

There doesn't actually have to be physical violence per se because there can be coercive behaviour for example as you will read in this excellent article: D

https://rightsofwomen.org.uk/get-information/violence-against-women-and-international-law/domestic-violence-injunctions/

If living arrangements are involved, it is very often impractical to live in the same house and it would very often be allied to an occupation order which defines or regulates the rights of occupation of property by the parties involved.

Many landlords will not change the name of the tenancy agreement for example without a Occupation Order.

It always helps if a report was made to the police recently because that is good evidence that this actually happened.  The reason is that to report something to the police which hasn’t happened is a serious offence of wasting police time and/or attempting to pervert the course of justice which potentially carries a short jail sentence.  So the civil court will take more notice if it has been reported to the police.

Having said that, the civil court will normally err on the side of caution and grant the order.  However if the order is applied for based upon fabricated facts and that comes out in the wash, that is also perverting the course of justice and contempt of court and also potentially carries a jail sentence.

It is one of the few areas of law which legal aid is still available in certain circumstances so it is certainly worthwhile contacting the solicitor in the first instance.

As there is usually some urgency with these kind of applications, it can be done on an emergency basis and there is the facility on the form to do that.  An applicant can also attach a Certificate of Urgency (a letter with that heading) explaining why this should be in court on an emergency basis, usually within a day or so.

These applications are usually made “ex parte” which means that the other side doesn’t get notice.  What I mean by that is that they are not told “if you do this again we will make an application to court”.

The first they know about it is when the applicant gets the order and they are given the order.

The effect of the order is exactly the same as a restraining order to restraining order is something applied for by the police/CPS through the magistrates court (or exceptionally the Crown Court) whereas a non-molestation order is through the family/civil court.

Section 1 of the Domestic Violence, Crime & Victims Act 2004 May the breach of a non-molestation order a criminal offence.  It’s serious stuff.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards

Customer: replied 13 days ago.
Thank you for that. If she was to leave the property for holiday and he changed the locks would she be able to do anything about this?
Expert:  Stuart J replied 13 days ago.

If the property was in joint names she could actually break in but she cannot do that if it’s in his sole name.

But what she could do is apply to court for an injunction to make him let her back in.

Because of the domestic violence here and the assault on the child, she would be well advised to apply for the non-molestation order and the occupation order that I mentioned earlier.  She may be entitled to legal aid so it would certainly be worthwhile speaking to a solicitor.

Customer: replied 13 days ago.
Thank you
Expert:  Stuart J replied 13 days ago.

It was my pleasure to assist you. Please come back if anything else crops up and needs clarification.
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