Young Kids, rights to stay in FHM?

Hi there. Writing on behalf on a family member struggling to understand her rights/position.

Summary: Married 2 years, have 2 young children under 5. Works 1.5 days per week on minimum wage, husband works full time on modest but undeclared salary. House has no equity. Children have own rooms & has been only home. Home is modest in size (3 bed semi) but in good serviceable/saleable condition. Husband pays mortgage but makes no domestic or child contribution. Husband enjoys regular social pattern absorbing significant proportion of income. Lifestyle for wife & children is 'subsistence' at best. Money for electricity/food/shoes is a regular issue. The wife is in constant overdraft to a modest degree.

Problem: Relationship is on edge of breakdown with no tangible effort from the husband to adjust or change. Husband says he will not move out and will give up work if divorce sort. Husband is verbally abusive & controlling but not physically abusive.

Question: What rights does she have to stay in property with children. What obligations does the father have given these summary conditions. She is concerned that he will essentially 'lock down' mentally and force her & children out of the property. This is quite likely to occur. Any advise on the legal situation & what she should best prepare to do would be very welcome...good or bad.

It may well be in the long run that the property must be sold anyway but we are very unclear on essential aspects regarding the children and rights to stay in their environment.

Again data, advise or links to more detailed articles would be a great benefit.

Many thanks in advance

Firstly, your friend ought definitely to investigate her position in relation to benefits. I would advise an early consultation with a CAB. In particular, tax credits can make quite a difference.

The husband ought to be paying child support according to the statutory formula. If there are two children involved that obligation is basically 20 % of his disposable income. If he pays the mortgage, that, in my book, should count towards the 20%. He is is helping to keep a roof over the childrens' heads.

The children have a clear need to a roof over their heads, and so has your friend, as their primary carer. However it is, of course essential that she can pay the mortgage, with the assistance of such resources as she has or might acquire.

These might include, for example :

Salary/wages
Child benefits
Tax credits
Council tax benefit
Maintenance ( child and spousal )

Spousal maintenance is a possibility but from what you say it might only be pitched at a very nominal level ; I think a Court might well say that 20% of his net income is all he can afford, though obviously without the facts I can't comment. Many people threaten to give up their job rather than pay maintenance but few carry it out. It is wholly counter productive and I always advise against it.

Your friend is unlikely to be awarded the house if she cannot afford to live there. Yes, the husband will be expected to contribute, but not to the point where he himself will be homeless.

In the final analysis your friend will not be homeless ; the fact that she has dependent children means that the local authority will be obliged, in the final analysis, to re-house. But I do not have enough detail to consider the housing options. Again, if she has to rent, housing benefit is available.

A visit to a CAB would be a good start.

LMM

Mike hi there, and many thanks for your quick response, this is really helpful.

CAB visit I agree is a must and I'm going to arm twist her to do this asap. She needs an accurate financial and impact assessment regardless of her choice going forward.

Given the limited data I have and have been able to provide, this is very helpful feedback.

Given that a visit to the CAB is essential, do you have a list of data items that would be necessary to make best use of their time? Some is obvious but if there is resource somewhere that points to a list that would be useful to make best use of that time it would be very helpful.

Thanks again Mike, this allows some solidity to enter an otherwise emotion filled discussion. Although I understand its not 100% black and white without detailed analysis.

Appreciated

One thing which you shouldn't really expect from a CAB is divorce advice. With the best will in the world, it's beyond most advisers.

What they are good at is benefits. You're asking for what we used call a ' what if ' benefit check. What you need is to know what your friend could get, not now ( though that might help ) but after separation.

No, there's no list but obviously an adviser will need details of a client's income, employment details, existing benefits, and any disability in the family. He'll need details about your children obviously and your housing situation.

On the whole, speaking in general terms, the Courts would tend to give priority to the needs of the children, as as I said, he has to have somewhere to live too, and as he can't get benefits and your friend could, he has at least to be allowed his rent.

If the house is in his sole name you will need to register matrimonial rights to prevent the possibility of him trying to sell or mortgage the property without your knowing. If your friend can claim IS/JSA, ask the adviser about help with mortgage interest and also, very important, about passport benefits like free school means and free prescriptions.

It's possible to ask the Court to make what is misleadingly called an occupation order - misleading because it can exclude him. But that won't be granted except for good reasons.

I think that's probably enough to be going on with.

LMM

That's super advice Mike many thanks.

There is no major motivation from her side to 'get him out' as it were or indeed deprive him of a reasonable existence but there is clear and spoken intent from his side to deprive her of staying...if that makes sense.

The relationship is a very controlling one and child interests are and will be secondary to the false target of 'wining' and unfortunately having seen a couple of divorces recently were 'wining' was the target, I can see at this stage that it threatens to become very emotionally messy.

For my sins I'm trying to help her identify structure and options rather than emotions. Unfortunately they are from a line of people who put emotions first and then consider plans secondly.

The advice you give is solid and I will make sure it's considered fully. An appointment at CAB is made since we last spoke and will focus on benefits as you mention.

Hopefully we can turn the wining aspect into one of responsibilities & priorities for the benefit of two small folk not involved in the conversation.

Many thanks again Mike

Hi Mike. You gave me some advice a little while back on the child housing situation in this thread. Many thanks again for this.

We did indeed do a CAB benefits check & she stands to be reasonably well looked after in theory. The only blocker as such being that there is a small amount of capital in the property contrary to my earlier assessment. it''s not much, probably less than 14k in total but I was led to believe by the CAB folks (who were excellent I have to say) that this could be a blocker to her receiving benefit support. I wanted to explore this in a little more detail if possible.

Just to note, we are for sure going to consult a solicitor but her finances are frankly none existent so I''m looking for any pointers on the practicalities first.

I imagine they will have to sell the property (and indeed she is not looking to do anything than split assets fairly) but how would she stand in way of financial support during that potentially lengthy period?

We are able to find a very suitable property for her & children to live in at a modest rental rate but can she get support before the martial home is sold? As mentioned previously the husband we know will fight this & delay any sale for an age, history & indeed previous marriage/ divorce shows history of this.

Is there a way to move to an alternative property before sale? Could she receive financial assistance for this transition period? Would some form of court order be needed to achieve that?

As I say, a solicitor visit we will arrange some how. But she feels land locked i.e. she knows that if she can get to the point were she can fairly claim benefits, she can (with our help) manage the way forward. But she feels resigned to having to cling on knowing that the property need selling first & knowing that that will be problematic. If I can show some process/procedural way forward, it will would help get to that next step.

Advice or experience here from you Mike...or indeed anyone would be gratefully received.

Many thanks

A few points, not in any particular order.

1. It is essential that I know whether the property is in joint names or his sole name.
2. If it is in joint names, and he is unwilling to sell, then I would suggest that my general experience of these things suggests that you need a Court order before the property is marketed, Not only this, but the order needs to be drawn up in such a way that there is a clear and definite timetable as to what has to be done and when. Without this you will almost certainly find that he will procrastinate, leave the house in a mess when people come to view, and resort to all sorts of guerilla tactics to delay a sale. If the house is in joint names he can kybosh the whole deal by refusing to sign and there is very little you can do about it ; by the time you get to the Court for Directions the buyer will have gone elsewhere.
3. So I would like to mention one possible option, and it may, or may not, be a possibility, as to whether your friend continues to live in the house with the children. It would not be for ever, and sooner or later the property would have to be sold. but the Court could, in theory, order him to leave.
4. I''m not sure that the CAB are right about capital but I have not done CAB for a long time and the rules may have changed, but I don''t think so. If your friend lives there I don''t think the value of the house is counted against her. But if the house is sold, then she share of the capital could well matter a lot, though there are some '' tricks of the trade '' that you can use to mitigate this ( perfectly legally, by the way ) but perhaps we cross that bridge when we come to it.
5. I''m not sure it''s a good idea to move out unless she has no reasonable alternative and if it''s as bad as that, she could perhaps think in terms of getting hubby to leave whether he likes it or not. You see, she would be remain liable on the mortgage and if hubby ran up rent arrears it could easily lead to re-possession and all sort of nasty consequences.
LMM