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SASH_Law, Lawyer
Category: Law
Satisfied Customers: 4708
Experience:  LLB (Hons)
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Myself and partner have a mortgage together and 2 children.

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good morning, myself and partner have a mortgage together and 2 children. when we purchased the property i had to sign something to say he put down 32% deposit. we are spiting up and i wish him to leave as it is the children home. do i legally have a right to ask him to be the one to leave?
JA: Where are you and the partner? It matters because laws vary by location.
Customer: gloucestershirew
JA: What steps have you and the partner taken so far?
Customer: none. He is the type of person to say he is not leaving until the house is sold but as i said i want to know what rights i have to stay in the house with the children.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no thank you.

Hi, I'm Lea and I have reviewed your query.

Are you married?

You refer to 'signing something' - was this a deed of trust?

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Customer: replied 1 year ago.
HI lea, no we are not married and yes i believe it was a deed of trust. I really just want to know what right i have to say to him this is the children's home and he has to leave not me.

Unfortunately neither one of you has the right to ask the other to leave without agreement or in absence of agreement, an order of the court (e.g. an occupation order).

As you were not married the property is owned according to the deed of trust, so 50/50 after he gets his 32% deposit returned first. If a court ordered a sale (very likely) that is exactly how they would divide the property.

Your options to remain in the property without him being there are to get an occupation order against him (there has to have been some form of abuse or harm to you and the children) which would exclude him from the property for 6-12 months (maximum) during which time the court would expect you both to resolve the matter (i.e. sell). Or, to make an application under Schedule 1 of the Children Act 1989 to ask the court to permit the children to continue to live in the property until they are 18.

You can apply for an occupation order on form FL401 - there is no fee for this application.

You can apply for a Schedule 1 CA financial application on Form A1. This will involve full financial disclosure from both of you - and the court is only likely to make an order as per above if the father has the ability to rehouse himself without issues. If it is unlikely that can occur then the application will fail.

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