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Stuart J
Stuart J, Solicitor
Category: Family Law
Satisfied Customers: 26822
Experience:  Senior Partner at Berkson Wallace
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My husband wants to a divorce but i have no where to live at

Customer Question

My husband wants to a divorce but i have no where to live at the minute with my daughter. The house where i live is his house
JA: Was the house purchased during the marriage?
Customer: No before
JA: Were any marital funds used for the mortgage or property improvements?
Customer: I have paid 500 pounds a month
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 dnt know
Submitted: 16 days ago.
Category: Family Law
Expert:  Stuart J replied 16 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 16 days ago.

For background - how long were you together and married in total?

how old is the child?

and what does he expect you to do?

are you prepared to ask for financial settlement?

Customer: replied 16 days ago.
Been together 8 years and nearly 4 years married my little girl is 5 .the money he has offered out of court is 10.000
Customer: replied 16 days ago.
I didnt realise i had to pay for a phone call i can not afford to do this
Expert:  Stuart J replied 16 days ago.

You have probably seen a pop-up offering you the chance of a telephone call at an extra cost. It is up to you whether you have a telephone call or not but do bear in mind that a 15-30 minute telephone call covers an awful lot of ground and you can get an awful lot of information in that time. So you can ignore it or go ahead or go ahead later. It’s your choice.

Meanwhile, we can carry on on here.

The house where you live is the marital home and you are free to come and go as you like and it doesn’t matter whether it’s in his name or your name or joint names, your financial interest is exactly the same.

You may think that he has been clever by keeping the marital home in his sole name but he hasn’t.

What will happen with regard to the division of marital finances is that everything will be lumped in together including pensions. With regard to pensions you will need a Cash Equivalent Transfer Value (CETV) which converts the pension to a lump sum for the mathematical calculation. You cannot get hold of that money but it converts it to a theoretical cash equivalent.

All the value of the assets are then lumped together and there is a division which starts off at 50-50 and it would then be adjusted in favour of one spouse or the other spouse depending on the needs of the parties, how long they have been married, where the money came from, et cetera et cetera.

Not just the length of the marriage would be taken into account but also any length of time together before marriage because it would be unfair if the couple were together for 29 years and only married for one year before splitting up (not uncommon) to be treated in the same way as a couple who had a whirlwind romance got married, were married for 12 months, and then split up. So the whole length of the relationship would be taken into account.

It’s largely a mathematical thing but does look at needs after divorce.

Even if everything is being divided down the middle, it’s not really a case of dividing it down the middle, all the assets wouldn’t be split 50-50 but, for example one person may keep the house and the other for example could have the savings and the pensions.

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.

There is a strong possibility therefore that you could live in the property until your daughter reaches 18 and only then it would be sold.

But you would be responsible for the mortgage and the bills meanwhile.

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

Customer: replied 16 days ago.
He is making really u comfortable for me to stay there .y anxiety is through the roof a d i am grying to keep it together for my daughter. I feel like he is trying to make me loose my temper so he can take my daughter from me
Expert:  Stuart J replied 16 days ago.

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.

Customer: replied 16 days ago.
I am trying to make it civil for my little girl
Expert:  Stuart J replied 16 days ago.

I appreciate that probably the easiest way of making and keeping it civil is to make sure that your partner stays away from you and hence my suggestion of the application for a non-molestation order.

Customer: replied 16 days ago.
But i feel things will get nasty
Expert:  Stuart J replied 16 days ago.

They may but the first he will know about it is when he gets the order and if he starts to be nasty, you dial 999 and the police arrest him.

Customer: replied 16 days ago.
If i found a house to live in would he have to support me
Expert:  Stuart J replied 16 days ago.

There is a possibility of a liability for spousal maintenance, maintenance paid to keep a spouse , as opposed to children. Although most commonly paid from husband to wife, that is not necessarily the case. Spousal maintenance is based on both incomes, ability to earn money, previous lifestyles and most importantly, need. It is not about equalising incomes. There is no exact formula, but these links will give some reading..

https://www.blbsolicitors.co.uk/blog/spousal-maintenance-how-much-and-for-how-long/

and

http://www.familylawweek.co.uk/site.aspx?i=ed33597

and

https://family.findlaw.com/divorce/questionnaire-are-you-entitled-to-alimony-spousal-support.html

And here is an interesting and informative article with regard to the division of finances in general

https://www.lawteacher.net/cases/financial-matters-on-divorce.php

And finally, here is an article what happens to inheritance in the event of a

divorce:

http://www.marilynstowe.co.uk/2011/05/18/what-happens-to-an-inheritance-in-the-event-of-divorce/

AND

A non-resident parent is obliged to pay child maintenance at the CMS rates which are here https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/672432/how-we-work-out-child-maintenance.pdf Do read the whole document but the basic rates start at the top of page 18. Child maintenance is reduced by 1/7th for each 52 nights that the non-resident parent has the children. If the children live 50-50 with both parents, then no child maintenance is payable. Considering there may be a disparity in incomes, that seems rather odd but that’s the rule. If the paying parent pays for other things such as clothes, toys, school trips, food, whatever, then it’s not classed as maintenance. They are voluntary payments. They do not get taken into account. Child maintenance has to be money paid by the paying parent to the resident parent. It doesn’t matter how much the receiving parent earns or what assets they have and it doesn’t matter what assets the paying parent has, child maintenance payments are based upon income of the paying parent.

Expert:  Stuart J replied 15 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 15 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

Customer: replied 15 days ago.
I probably will ha e more questions if thats om
Customer: replied 15 days ago.
Ok
Expert:  Stuart J replied 15 days ago.

No problem

By the way, if you would like to ask me a new question in the future, (not just clarification on this thread, then please just type @ (the at sign) followed by my name and you’ll be able to select my username to tag me in the question.

If you like, you can also put “For Stuart J only” in the question thread and then the other experts will know that it’s for me.

You can also tag me as one of your favourite experts.

Thank you

Kind regards.

Stuart

Customer: replied 15 days ago.
My husband has 3 houses ive have one what is rnted out in an awful area . I wanted to keep that as investment for my daughter, He said he would buy it i will only vet about 8 thousand feom the sale of that house as they is no equity in it .he has said that he would by that house from and keep it for my daughter . I owe him 5 thousand pounds and he is said in all i would recieve 10.000 but would of been 15.000 but obviously i owe 5 and we wouldn't have to go ro court and it would be all amicable. I am scared to go to court as i feel my mental health cnt take the total bitterness
Expert:  Stuart J replied 14 days ago.

If you don’t want to go to court, and to a great extent you are at his beck and call as to what he wants. You can always instruct solicitors to do it for you although it’s always desirable for you to attend.

Customer: replied 14 days ago.
I just want in to be civil but it looks like if i dnt agree to this its going to get nasty
Expert:  Stuart J replied 14 days ago.

Unfortunately that very often happens. It’s the nature of divorce. Sorry.

Customer: replied 13 days ago.
Just wondering am i entitled to anything while i am still living in the house as i am still paying rent until i fund somewhere else to live . I am currently on the sick fro. Work ,
Expert:  Stuart J replied 13 days ago.

If you are talking about income/maintenance than as part of the divorce process you can make an application for “maintenance pending suit” which is an interim provision to provide you with some income while everything gets sorted.

Customer: replied 13 days ago.
Even if i am still living in his house and would that come from him
Expert:  Stuart J replied 13 days ago.

That would come from him. However, if you are enquiring about benefits, you would need to speak to another expert because that is not my area.

Do remember that if you are living in the property and he isn’t, you are responsible for the mortgage and the bills

Customer: replied 13 days ago.
He is he wnt nove out as his mam and dad live in a granny att in the garden
Expert:  Stuart J replied 13 days ago.

Thank you. In which case within the marriage of finances you are jointly liable for the mortgage and the bills but as part of the divorce proceedings you would still be entitled to make an application for maintenance pending suit if he is not giving you any money.

It will take into consideration however your work and your ability to work.

I am off-line now on annual leave until Monday although I will touch base briefly each day in case anything needs answering. I just don’t want to think that you have been abandoned.

Customer: replied 13 days ago.
Aww thanks so mucb you have been amazing. I am not on the mortgage ive just being paying 500 a month
Expert:  Stuart J replied 11 days ago.
My pleasure. I am glad to help