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Stuart J
Stuart J, Solicitor
Category: Family Law
Satisfied Customers: 24626
Experience:  Senior Partner at Berkson Wallace
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I am currently starting the process of separating with my

Customer Question

Good morning,My name is***** am currently starting the process of separating with my husband and there are many things I would like to understand how it works.
We are both Portuguese, residents and working in the UK since end of 2012. We have two children (6 years old and almost 3 years old).
My first question will be regarding our house.
We own a house, we bought it together and both names are ***** ***** deeds.
My husband wants to sell the house but that is not my intention. I would like to stay in the house, which is a family home because it is very well located regarding school and nursery and we have very good neighbours who give a lot of support. They also have kids the same age as ours, with whom my kids play with. I believe emotionally will have a bigger impact if they would be taken away from the house they love. I don't know if there is any law that gives precedence to keeping the family home for the well being of the children.
I read about the option to buy out my husbands share and I consider this as second option. Still have to understand if I can afford it, however I would prefer not to sell it at all. My husband said he doesn't want to sell his share to me and wants to sell it to someone else. I don't know if he can prevent me from buying his share.
JA: What steps have you taken? Have you filed any papers in family court?
Customer: no nothing has been done so far
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: I would prefer not going to court. I live in Bromley (Kent)
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Nothing that I can think of now.
Submitted: 18 days ago.
Category: Family Law
Expert:  Stuart J replied 18 days ago.

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

Please bear with me and 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.

For background -

how long have you been together and married in total?

is your name also on mortgage? can you afford to pay the mortgage and bills alone if you are left in property?

Customer: replied 18 days ago.
Have been married for 10 years.
Yes my name is ***** ***** mortgage and I can afford to pay the mortgage and bills alone.
Expert:  Stuart J replied 18 days ago.

If you have dependent children it’s unlikely that your husband is going to be able to force the sale of the house of the children live with you.

Parents are under a duty to provide a home for dependent children until they reach 18 and therefore, unless there is a lot of equity in the property, sufficient to release enough to the non-resident parent and provide a home for the resident parent and the children until the youngest reaches 18, it’s unlikely that the non-resident parent is going to be able to force a sale of the property.

The only good news is that the party that remains in the property is responsible for the mortgage and the bills.

The situation would be completely different if there were no children and it would be infinitely possible for the person wishing to sell to force a sale of the property if necessary under section 14 of the Trusts of Land Appointment of Trustees Act by applying for an “order for sale”.

Dependent children, under 18, change all that.

A person is not responsible for the mortgage or rent or the bills of a house that they do not live in although they remain liable to the lender or landlord  if the other person stays in the property and doesn’t pay the mortgage or rent.

In that case, the non-occupier would be entitled to recover any mortgage or rental payments made by the non-occupier, from the occupier within the finances of the breakup of the relationship/marriage.

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 17 days ago.
Thank you very much for your reply.I have a question regarding
> unless there is a lot of equity in the property, sufficient to release enough to the non-resident parent and provide a home for the resident parent and the children until the youngest reaches 18Does this means if selling the house would allow both parents to buy/rent their own properties separately until the kids are 18 years old?I have another question related with buying my husband's share of the property. He is saying he doesn't want to sell his share to me and wants to sell the whole house to a third party. Can he refuse selling his share to me?Thank you once again for your help.
Expert:  Stuart J replied 17 days ago.

Your understanding is correct of my reply.  If there was a lot of equity in the property so that both parents would have enough money to buy houses, then the property is likely to be sold.

If one parent stays in the property, because there is not enough equity in it after paying the mortgage, it’s most likely it would still be sold when the youngest child reached 18.

There is nothing to stop you buying the property on the open market if he insists that it sold.  However if you have to do that it is highly likely that he would have to pay the legal costs of the court hearing and the agent’s costs quite simply because there is no reason for it to be sold on the open market and the court would usually award costs against him because he has simply been unreasonable.  Those costs could be substantial and you could easily be looking between 10,000 and GBP15,000 depending on the value of the property, potentially more

Customer: replied 17 days ago.
Thanks for coming back to me.Considering I stay in the house and when the kids are 18 we sell it, is it the equity split equally?Regarding the belongings we have in the house, how is it usually done? Is there some kind of evaluation done and decided who keeps what? Also, regarding works that need to be done in the house, is this only my responsibility?Thank you once again.
Expert:  Stuart J replied 17 days ago.

At that stage the equity would probably be split 50-50 or 60 40 in your favour depending on how long you have been paying the mortgage for.

You are indeed responsible for the mortgage and the bills in the interim.