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JimLawyer
JimLawyer, Solicitor
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I am in the process of separation with my husband and i am

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Hi I am in the process of separation with my husband and i am not sure what my entitlement are. I have a house with him and he is not willing to sell. We have two children, age 20 and 13.
JA: What steps have you taken? Have you filed any papers in family court?
Customer: No not at moment we had a discussion and I told him I would like a divorce and i am going to put the house on the market. He told me he is not going to file for divorce or start any process of selling the house.
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 live in coventry and think it might be west midlands or Warwickshire
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Am i able to start the process of selling our house?

Hello, I’m Jim, a dual-qualified lawyer (UK & Republic of Ireland) and happy to help you today.

If he is on the property deeds, you cannot sell without his agreement (or a court order). If he is not on the deeds, he could register home rights and a restriction at the land registry, meaning you cannot sell the property. So if he is refusing you would either need to apply for a judicial separation or a divorce - and a financial order to deal with the property.

Is the marriage over and you want a divorce or is a separation better?

Customer: replied 11 days ago.
The marriage is over due to him drinking and getting aggressive. I would like to separate from him and through divorce was the only way. He suggested to stay in the same house and we live separate life but it is not working.
Customer: replied 11 days ago.
Sorry it is not suitable for me to talk as he is around in the house.

That's fine, we can continue online. I will set out the answer now

Customer: replied 11 days ago.
Thank you.

If the marriage is not classed as a short one (i.e. more than 5 years living together and also being married) then a split of assets is likely as opposed to a clean break. There are two orders available: a clean break order (if there are no assets to split) and a consent order.

You can sell the property and that would give you each a fresh start. You can either apply for a judicial separation (and then a financial order), or a divorce (if you want to dissolve the marriage - in your situation due to your husband's unreasonable behaviour) and again, apply for a financial order. Bear in mind with a legal separation you remain married and as such no pension sharing order is permitted (unlike for divorce).

If you disagree and cannot come to an agreement, you can ask the local family court to assess a split of the finances and also to deal with the property. You could stay in the property as you have a 13 year old - the court will want to ensure your 13 year old has a place to live. You could therefore live in the property until they reach 18 after which the property can be sold.

Assuming your husband eventually agrees to a settlement then you can have a consent order drawn up to bind the parties to the agreed terms.

The court will consider the factors contained within Section 25 of the Matrimonial Causes Act 1973 when it assesses a financial settlement. Therefore your ages, length of marriage, any children under 18, your earnings and earning potential (same for your husband), the assets including the former matrimonial home and pensions if applicable, any debts, financial and non-financial contributions to the marriage, your standard of living enjoyed before the marriage breakdown, your financial needs in future and your housing needs, any medical needs and so on.

The starting point is 50% but if there is a disparity in earnings or you have paid more in the way of mortgage/rent, etc, you can ask for more than 50% of the former matrimonial home. It would be worth speaking with him to see if he would agree to any split without having to involve the court. I realise this may not work if he is drinking to excess and is aggressive though.

If nothing can be agreed then you would need to issue financial remedy proceedings once decree nisi comes through (if you start divorce proceedings), or obtain a decree of judicial separation, so you ask the court to become involved in a financial settlement as well as the divorce.

Before you involve the court with the finances you need to contact a local mediator which is compulsory before you ask the court to intervene in the financial aspect. You can find a local mediator here :

https://www.familymediationcouncil.org.uk/find-local-mediator

Assuming mediation fails or your husband doesn't agree to mediation then you will need to issue financial remedy proceedings and you would need to complete and send two completed copies of Form A (one copy is attached) to your local family court and pay a fee of £255 payable to HMCTS. If you are on a low income or have low savings you can ask the court for help with the fee here https://www.gov.uk/get-help-with-court-fees

The court will then list a first appointment and give directions for a financial dispute resolution hearing (FDR) where the judge will give their opinion on a likely settlement - which usually prompts a settlement at this stage. The court will ensure the parties make full and frank disclosure of their assets and liabilities to ensure the financial positions of you both are known and to allow the court to make a settlement decision. If the case does not settle, further directions will be given and a final hearing may take place if neither of you can agree to settlement terms.

To apply for a judicial separation, the site is here: https://www.gov.uk/legal-separation

To apply for a divorce, the site is here: https://www.gov.uk/divorce

And for information on a financial order: https://www.gov.uk/money-property-when-relationship-ends/apply-for-a-financial-order

Finally, if you need money before the divorce finalises you can apply for “maintenance pending suit”, which means you ask the court for an order that your ex pays you support to help with bills and so on before the case finishes. You will need an application form under Part 18 of the Family Procedure Rules 2010 and the fee is £155. You would need to attend a hearing for this.

If your husband is abusive - you can in the meantime apply for an occupation order and a non-molestation order - meaning the court orders him to leave the property and not to speak to you. You can apply for this now if you wish, or if matters deteriorate.

I hope this helps - if you can please accept the answer and give me a 5 star rating (there should be a button at the top of your screen to do this), I can answer follow up questions at no extra charge and Just Answer will credit me for helping you today.

Many thanks,

Jim

JimLawyer and other Law Specialists are ready to help you
Customer: replied 11 days ago.
Thank you, ***** ***** be really helpful and there is a lot of information to register. If I have any more questions that I might be unsure about can I get in touch with you.I will rate the chat now.Thank you.