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Stuart J
Stuart J, Solicitor
Category: Family Law
Satisfied Customers: 26795
Experience:  Senior Partner at Berkson Wallace
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My husband & I have decided to separate & I'm unsure of any

Customer Question

Good afternoon. My husband & I have decided to separate & I'm unsure of any help I may be able to receive. We have a joint mortgage & 2 children together. Our daughter is almost 14 & our son is 10. He wants our son to stay with him, that's also what our son says he wants, but obviously I want him to stay with me & his sister. What legal rights do I have regarding where our son lives & what do I need to do to sort out a home for us & financial support please? My husband won't make this easy & can be emotionally & psychologically abusive at times 😢
JA: What steps have you taken? Have you filed any papers in the family court?
Customer: No not yet, we just announced it Tuesday
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'm unsure. I live in Camborne, Cornwall
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I'm not sure?? Sorry
Submitted: 19 days ago.
Category: Family Law
Expert:  Stuart J replied 19 days ago.

Hello. My name is***** you for the question.

It is my pleasure to assist you today.

I have been in the legal profession, in High Street practice, for almost 30 years so I have wide range of experience in a great many different aspects of law.

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.

Although I am shown as online, I may be dealing with other people, on the telephone, or typing.

Please be assured that you will receive an email once I have written a reply.

Just Answer is not a chat service, it’s an email reply board and therefore sometimes it will be minutes, sometimes it may be longer, even hours or overnight.

I apologise in advance if you suffer a delay.

Kind regards.

Expert:  Stuart J replied 19 days ago.
For background - how long have you been together and married in total?

are you going to legally seperate/divorce in order to get financial settlement?

in who's name is ***** ***** who pays?

Customer: replied 19 days ago.
We've been together for 16 years & married just over 14 years. The mortgage is joint. I don't think either of us can afford to go down the legal route. I'm not bothered about money as such, just want to make sure my kids & I are safe with a roof over our heads & money to survive. I do work but given these circumstances I'll have to reduce my working hours due to childcare issues
Expert:  Stuart J replied 19 days ago.

At 10 years of age, it is debatable whether the court would take much notice of what the child wants particularly if there was any suggestion that the child was being pressured or coerced by the particular parent although a lot does depend on the maturity of the child. Certainly at 11 or 12 they would take notice.

Courts do not regularly break up siblings although once again it depends on what they both want and how they get on together.

The 14 year old would almost certainly go where the 14-year-old wanted to go.

You would need to make an application for a Child arrangement order if you can’t decide where.

Fortunately, there is a lot of information on the Internet about Child Arrangement orders and the government have actually produced a guide on the subject which is here.

https://www.gov.uk/looking-after-children-divorce

The different types of Child Arrangement order are:

1 A Contact Order which specifies when parent sees a child, it is no longer called "access".

2 A Residence Order to determine who the child lives with, it is no longer called "custody"

3 A Prohibited Steps Order to prevent a parent doing something with the child such as moving away either in this country miles away or taking the child to another country. Particularly relevant if there is a chance that the parent would go to another country and never return. The parent wishing to prevent the move would have to convince the court why it’s not in the best interest of the child to move. Friends, support, school et cetera et cetera all taken into account.

A Prohibited Steps Order is to prevent child Abduction and it’s one of the few areas of law for which legal aid is sometimes still available. It’s often therefore worth seeing a solicitor.

4 A Specific Issue Order to allow a parent to do something specific with the child such as moving away to another part of the country or indeed to another country. . The parent wishing to move would have to prove why it’s not in the best interest of the child to move.. Friends, support, school et cetera et cetera all taken into account. It would also encompass things such as changing school if the parents cannot agree, changing the child's name, and anything other specific.

The courts will not get involved in a Contact or Residence order unless the couple have been to mediation first. So the couple would have to try mediation even if it subsequently fails and the matter proceeds to court. That doesn't apply however if something is required in an emergency such as a Prohibited Steps Order.

With regard to the house:

You have to remember that if you have dependent children, under 18, the situation can be completely different.

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 some money to the non-resident parent AND provide a home for the resident parent aAND 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. However in those circumstances the resident parent would be responsible for the mortgage and the bills not the non-resident parent although there is still the possibility of child maintenance and spousal maintenance.

If the parent with residence of the children cannot afford doesn't want to live in the property because, for example, it's too big, they can always sell it and asked the court to apply the proceeds to a new house to provide a home for the children until they reach 18. Only then would it be sold.

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

Stuart

Expert:  Stuart J replied 19 days ago.

Can I help you any further with this?

It's my pleasure to help. I’m glad that I was able to help so far.

Thank you for trusting Just Answer with your legal problem.

I'm happy to clarify anything which is outstanding.

Please don't hesitate to ask.

Kind regards

Stuart

Expert:  Stuart J replied 18 days ago.

Hello again.

If you don’t have any further questions, I will mark this question thread as complete for now, but don’t worry, the thread stays open if anything else crops up over the course of the next days weeks or months.

I’m glad that I was able to help.

Thank you for trusting Just Answer with your legal problem.

Kind regards

Stuart