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Marisawright

Legal separation in the UK - any info?

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My niece's relationship has broken down and she needs to start the process of organising property division, child custody etc. They're not married. I know all about how it works in Australia but nothing about where to start in the UK!

 

Can anyone point me to good websites explaining how it all works, advice lines, etc? She went to see a solicitor but has come away totally confused (and terrified by the size of the fee!). She's in Surrey.


Scot by birth, emigrated 1985 | Aussie husband applied UK spouse visa Jan 2015, granted March 2015, moved to UK May 2015 | Returned to Oz June 2016

"The stranger who comes home does not make himself at home but makes home itself strange." -- Rainer Maria Rilke

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keep away from solicitors......my brother is one and that was his advice to me if my relationship ever broke up.....sort it out amongst yourself if at all possible.....on another note.....Australian Law is based around UK Law so its all probably very similar.

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keep away from solicitors......my brother is one and that was his advice to me if my relationship ever broke up.....sort it out amongst yourself if at all possible.....on another note.....Australian Law is based around UK Law so its all probably very similar.

 

Her partner is hostile and abusive so that makes getting agreement between the two of them difficult.


Scot by birth, emigrated 1985 | Aussie husband applied UK spouse visa Jan 2015, granted March 2015, moved to UK May 2015 | Returned to Oz June 2016

"The stranger who comes home does not make himself at home but makes home itself strange." -- Rainer Maria Rilke

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I'm sorry about her relationship breakdown. Has she been to the Citizens Advice Bureau? They're pretty good, if overworked.

Mumsnet is also a good place for advice from people who have gone through, or are going through, similar as well as having solicitors as members who are usually happy to give advice.

From what I can gather, it'd be better for them to sort things out amicably as she has few 'rights' as they're unmarried, but she definitely should get proper advice. A lot of solicitors offer a free half hour, so she could try a few and find one she feels comfortable with and who confuses her less before she commits to parting with any money.

 

Ive just read your update. In an abusive situation, https://www.womensaid.org.uk is often recommended.

Edited by caramac

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Her partner is hostile and abusive so that makes getting agreement between the two of them difficult.

 

what type of agreement is she looking for.....the children will go to her unless she is not fit to look after them.....there are government departments set up to help with maintenance.....you have social services etc that she can go to for emergency help and assistance.

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what type of agreement is she looking for.....the children will go to her unless she is not fit to look after them.....there are government departments set up to help with maintenance.....you have social services etc that she can go to for emergency help and assistance.

 

Well, they will need to split up the proceeds (they're trying to sell the house), and agree access rights for the child.


Scot by birth, emigrated 1985 | Aussie husband applied UK spouse visa Jan 2015, granted March 2015, moved to UK May 2015 | Returned to Oz June 2016

"The stranger who comes home does not make himself at home but makes home itself strange." -- Rainer Maria Rilke

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When we bought my house we were not married. We had to choose which way we wanted to jointly own it because we weren't married. I think the options were totally joint, if one died it went to the other one, or split (and whatever % you chose) and if you died that share could go to someone else. Might be worth contacting their conveyance solicitor to see what they went for.


Has two beautiful Aussie little girls :-)

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the house will be split 50/50....the kids will go to her (unless she is not capable of looking after them)......access is what they need to organise....sort it between them or pay a fortune through solicitors.....at the end of the day it will be him that is arguing for access (if he is a decent father).....if not then it his loss.....when I was a kid my dad came to us once every 2 weeks.....seems to work well for lots of broken families.

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the house will be split 50/50....the kids will go to her (unless she is not capable of looking after them)......access is what they need to organise....sort it between them or pay a fortune through solicitors.....at the end of the day it will be him that is arguing for access (if he is a decent father).....if not then it his loss.....when I was a kid my dad came to us once every 2 weeks.....seems to work well for lots of broken families.

 

 

Its not not that simple. They're not married and there's abuse. She needs proper legal advice.

 

Marisa, I've just remembered, although legal aid has been cut for many, I'm pretty sure that where there's abuse, you can still access it. Worth asking? Women's Aid will know and they also have solicitors who can advise.

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Six years ago I paid £1500 to obtain a 'barristers opinion' regarding my property settlement with my ex and I'm happy to share that information so that someone else can save some money finding out similar.

 

Couples tend to buy a house either as 'joint tenants' or 'tenants in common'. Joint tenants own the house equally and in the event of one person dying the house automatically goes to the other in its entirety and become the other persons house. Tenants in common own a share of the house each, and upon the death of one of them they can leave their half to whoever they want to. Most couples who buy a house as their family home tend to be joint tenants, the other option is more likely used for business arrangements.

 

Me and my ex were joint tenants. I paid a large deposit on our home but did not get this protected at the time of purchase (big mistake), so when we separated my ex was legally entitled to 50% of the equity in the house, which basically included a large chunk of the deposit that was mine. The reason I sought a barristers opinion was because I wanted to try and get my deposit back first and then agree to split the remainder of the equity. What I was informed was the following:

 

As joint tenants, the equity of the property was a 50/50 split, regardless of who paid what in to the house or who paid the majority of the mortgage.

The fact that my ex had only lived in the house for a short time, had moved out on a certain date and never contributed to the mortgage afterwards made no difference; both parties were entitled to 50/50 share at the time of the sale. This would be based on what the house sold for, not what the house was worth when one party moved out and/or stopped paying towards the mortgage.

As I was living in the house with a child under the age of 18 my ex could not force the sale of the house, but would still be entitled to 50/50 of the equity at the time of the sale when my child reached 18 despite never paying another penny towards the mortgage.

 

So, effectively, my ex was sitting on a little nest egg for no extra investment at all. If I maintained the house, improved it at my own expense so that it was worth more, he was still entitled to the profit that my investment would bring. This caused me a lot of distress and concern.

 

One of the options I had was to not pay the mortgage myself and allow the lender to apply for repossession, but this was not an option for me and would have caused me major problems in the future to obtain any form of finance.

 

In the end, my ex did not want to wait until our son was 18 years old to get his money, so I had the house valued and made him an offer in order to 'buy him out'. However, this was not as easy as it seems! Our mortgage had never been defaulted on and I was covering the monthly repayments by myself but the lender was not satisfied that my salary was enough to cover the mortgage in its entirety and was reluctant to do a Transfer of Mortgage Payment (known as a TOMP) in to my name. Thankfully, after some begging and pleading and a thorough review or our repayment history they relented.

 

The barrister did state that I could have taken the matter to court to get it challenged but it is costly. They recommended that unless you have equity of over half a million pounds to argue over it's not worth the cost of the solicitors fees. In my case we were looking at equity of around £45,000.

 

I would recommend that your niece tries her best to negotiate a cost of buying her ex out if that's at all possible. That way, he will get a lump sum for little hassle (there will be a small amount of solicitors fees to pay, the TOMP fee and some land registry fees - this all cost me £700), and she will have financial severance and be able to do what she wishes with the property with all future equity being hers.

 

If she remains in the house with the children and holds off paying him any money until they become 18 then the other drawback she will face is if she wanted to sell the house for her own reasons (to buy another one with a new partner for instance) and the ex partner became bitter and refused to co-operate with the sale. Your niece would not be able to sell the home without his consent, and if he still refused then she would have to go to court to get a Force of Sale Order, which is another costly and timely matter!

 

I apologise if some of the above is now out of date, but hopefully it will give some sort of guidance of a starting point with sorting out the affairs of the house. When you are dealing with an abuser then it is very hard to do this amicably. My ex's goal was for me to lose the house as he knew this was where I desperately wanted to stay and bring up our son, so initially he held out for full 50% equity knowing that I couldn't afford it and would have to sell the house to pay him off, or he'd sit and wait for his nest egg when our son turned 18. Fortunately, he needed some money rather quickly so eventually settled for a sum of money and my family stepped in and loaned me the money to pay him off.

 

Alternatively, if your niece wanted to move on then she could ask for her share of the equity and sign the house over to him. Contents of the house was never an issue for us as I was in the UK and my ex was in Oz, so how they'd go about splitting those then I'm not too sure. However, I managed to furnish my house very nicely with second hand furniture that was beautiful and for a very small cost (furnished the whole house for less than £700 when I returned to the UK) so drawn out legal arguments over furniture may not be cost effective.

Edited by Rachel Tilley
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Don't Let It Happen To You : What Every Mother Should Know Before Emigrating. Available on Amazon by Rachel Tilley.

http://www.amazon.co.uk/Dont-Let-Happen-You-Emigrating-ebook/dp/B00FV80PTM/ref=sr_1_1?s=digital-text&ie=UTF8&qid=1451572986&sr=1-1&keywords=rachel+tilley

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Its not not that simple. They're not married and there's abuse. She needs proper legal advice.

 

Marisa, I've just remembered, although legal aid has been cut for many, I'm pretty sure that where there's abuse, you can still access it. Worth asking? Women's Aid will know and they also have solicitors who can advise.

 

It is as simple or complicated as you want to make it. A little common sense is what is needed....she will get custody of the children and I am pretty sure that is the single most important thing for her.....there are government agencies to assist with emergency accommodation if its required.....she can go to the police and get a restraining order if there is violence in the relationship......the house (if they own it) will be split 50/50.....as I said at the begining and it came from the horses mouth (my brother).....avoid solicitors.....or barristers come to that at all costs.....the internet is a great source of info......you don't need to pay a brief 250 quid for info that is readily available for free.

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If there has been domestic violence she may be entitled to legal aid if she is on a low income.

 

They are not married so she will have limited rights. She needs to check to see if house is owned as joint tenants or tenants in common.

 

Who is the primary carer of the children? Has the violence been directed to the children?

 

The housing needs of the children are priority but unless he is mega rich the chances are the house will have to be sold and split.

 

Has she got somewhere to go or is she staying and he is leaving in the short term?

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The problem with relying on random internet advise is that it is not always accurate or applicable to her situation.

 

For example - it is unlikely she is very unlikely to get a restraining order from the police. She may have enough for a non-molestation order which is an entirely different thing.

She wont necessarily get "custody" (and it hasn't been called that since the 1980's ) it depends on the circumstances of each case.

Government agencies wont give her a house if she already has one and I'm pretty sure that she would rather avoid taking children to a shitty B & B or refuge.

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The problem with relying on random internet advise is that it is not always accurate or applicable to her situation.

 

For example - it is unlikely she is very unlikely to get a restraining order from the police. She may have enough for a non-molestation order which is an entirely different thing.

She wont necessarily get "custody" (and it hasn't been called that since the 1980's ) it depends on the circumstances of each case.

Government agencies wont give her a house if she already has one and I'm pretty sure that she would rather avoid taking children to a shitty B & B or refuge.

 

Who said "random" internet advise.....there are lots of professional websites.....citizens advice....shelter.....money advice....that can give you info that can help before handing over large sums to solicitors.

 

If her safety is threatened she will be able to obtain a restraining order.....it maybe for a short period and it may have restrictions but she will be able to go to the police and seek some protection.....domestic violence is quite high on agenda's these days.....especially when children are also involved.

 

She will get custody unless she is a drug addict or completely incapable of looking after the children.....the courts will only remove the children from the mother in extreme cases......what difference does it make if it hasn't been called "custody" since the 80's.....we all know what we are talking about.

 

She will get housed as long as she has the kids.....be it B&B or some other accommodation.

 

Why is it people are so intent on splitting hairs?

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Who said "random" internet advise.....there are lots of professional websites.....citizens advice....shelter.....money advice....that can give you info that can help before handing over large sums to solicitors.

 

If her safety is threatened she will be able to obtain a restraining order.....it maybe for a short period and it may have restrictions but she will be able to go to the police and seek some protection.....domestic violence is quite high on agenda's these days.....especially when children are also involved.

 

She will get custody unless she is a drug addict or completely incapable of looking after the children.....the courts will only remove the children from the mother in extreme cases......what difference does it make if it hasn't been called "custody" since the 80's.....we all know what we are talking about.

 

She will get housed as long as she has the kids.....be it B&B or some other accommodation.

 

Why is it people are so intent on splitting hairs?

 

This is not splitting hairs.

 

Unless there is serious domestic violence and the police have enough evidence to prosecute she will not get a restraining order. The police do not give restraining orders, the criminal courts do. She may get a non-molestation order which has nothing to do with the police and is an entirely different thing.

 

She will be way down the priority list for housing, she has a house to live in and therefore the local authority will tell her to live in it. They will expect her to go to the police and get him removed from the house on bail conditions or to obtain an occupation order to remove him from the house. Having seen the state of some B & B accommodations and refuges I am pretty sure she will not want to be in them.

 

Its not about removing the children from her, the Courts like shared care arrangements and she should be aware of that. There are no guarantees in family courts so you cannot say she will get the children without knowing the full facts.

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Thanks all for the advice. It seems that the legal situation for unmarried couples is nowhere near as legally clear-cut as it is in Australia!


Scot by birth, emigrated 1985 | Aussie husband applied UK spouse visa Jan 2015, granted March 2015, moved to UK May 2015 | Returned to Oz June 2016

"The stranger who comes home does not make himself at home but makes home itself strange." -- Rainer Maria Rilke

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Yelling and arguing is not really considered domestic abuse.

It is understandable though that we tend to assume it is only the other party that does it.

 

My advice would be to get advice from a solicitor to know in detail her rights.

Whether she uses a solicitor after that is up to her in full knowledge of what they charge.

 

But really you need professional advice rather than well meaning amateur advice.


I want it all, and I want it now.

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Yelling and arguing is not really considered domestic abuse.

 

 

It's not yelling and arguing. There can't be any of that, because he won't speak to her at all - although they are still living in the same house. I have seen the texts and emails he has been sending her but I couldn't repeat most of the words he calls her (these are not emails having an argument either, they are just random texts telling her what an ugly moronic ***** ******* **** she is).


Scot by birth, emigrated 1985 | Aussie husband applied UK spouse visa Jan 2015, granted March 2015, moved to UK May 2015 | Returned to Oz June 2016

"The stranger who comes home does not make himself at home but makes home itself strange." -- Rainer Maria Rilke

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It's not yelling and arguing. There can't be any of that, because he won't speak to her at all - although they are still living in the same house. I have seen the texts and emails he has been sending her but I couldn't repeat most of the words he calls her (these are not emails having an argument either, they are just random texts telling her what an ugly moronic ***** ******* **** she is).

 

Tell her to send him a message saying "you text messages are abusive and unnecessary, if you continue to be verbally abusive I will report you to the police and block your number. If you wish to remain amicable for the sake of our child I am happy to discuss matters as a grown up"

 

I also suggest that she goes to the GP and tells the GP how upset she is by the messages and its effecting her mental health, If she is on low income then this will help her get legal aid.

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I agree with Racmac. She shouldn't leave the family home unless her safety is threatened as she will be deemed to have made herself intentionally homeless and will be way down the list for housing despite having children. I'd imagine she'd want to avoid B&B if she can. There's a huge shortage of social housing and a long list of people who need it.

 

It's more complicated because they aren't married, so she has very few rights as a 'spouse'. Her ex partner will have to provide for the children, but she won't be entitled to spousal maintenance, so hopefully she'll be able to support herself through her own income. That may mean her moving house if she can't pay the mortgage/rent on her own. Unmarried couples don't have the same rights as married ones, so, given that (from what Marisawright has told us) there is bullying/abuse, there's very little likelihood of an amicable split, she'd be sensible to get proper legal advice which could well save her money in the long run.

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It's not yelling and arguing. There can't be any of that, because he won't speak to her at all - although they are still living in the same house. I have seen the texts and emails he has been sending her but I couldn't repeat most of the words he calls her (these are not emails having an argument either, they are just random texts telling her what an ugly moronic ***** ******* **** she is).
Why does she read them then, just block his number.

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Why does she read them then, just block his number.

 

Because that's the only way she can communicate with him (e.g. to organise pickup of the kid from school etc).


Scot by birth, emigrated 1985 | Aussie husband applied UK spouse visa Jan 2015, granted March 2015, moved to UK May 2015 | Returned to Oz June 2016

"The stranger who comes home does not make himself at home but makes home itself strange." -- Rainer Maria Rilke

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Why does she read them then, just block his number.

 

Because it's not that simple. Some people who are in an abusive relationship need to know what mood/frame of mind the abuser is in so that they can plan their next step to safeguard themselves. Simply ignoring an abuser is not going to make the abuse go away and abusers are not the type to give up if they are ignored - they often up the abuse or do something different to regain control. If it was easy to leave domestic abuse there wouldn't be the need for all of the support agencies.

 

Restraining Orders are hard to work with when you have children involved. A court will not automatically ban a parent from seeing their children because one parent has a RO against the other, so it makes it hard to arrange contact (and it's also hard for the children, they are often the witnesses when RO's are breached and parents are reluctant to use their children as witnesses against another parent in order to enforce an RO at court).

 

My friend has had a RO against her ex husband for the last 7 years, it was an unusual one as it is open ended (he has been to prison for offences against her) yet he has always had 50/50 shared care of two children since his release as he was not a danger to them. The breaches of the RO he has succeeded in doing have been very subtle, but enough to continue to cause her emotional and mental distress. The witnesses were always her two children but she would never ask them to give statements. On the one occasion that there was independent evidence of the breach she contacted the police and gave a full statement outlining all of the other breaches that she'd had to ignore because she didn't want to put her children through the court as witnesses and CPS decided not to run it saying that she "was picking and choosing when she wanted to enforce it." As the kids got older they were reluctant to go and see their dad but CAFCASS reported otherwise so the contact order of 50/50 remained in place. It was only when the one child turned 18 that they decided to sever contact, the other still has to go.

 

My friend has done everything legally and by the book, spent thousands on solicitors fees, yet her ex husband continued to abuse, refused to co-operate, refused to return the children after contact on one occasion and 'kept' them at his house for a month and she had to pay £1000 to go to court to get them back, and there were no consequences for him at all, he was told not to do it again!

 

It's really not easy to sort out at all. If you've never been in this sort of relationship then consider yourself very fortunate, it's hard to comprehend the complexities that people face and the conditions they have to deal with if you've not experienced it.


Don't Let It Happen To You : What Every Mother Should Know Before Emigrating. Available on Amazon by Rachel Tilley.

http://www.amazon.co.uk/Dont-Let-Happen-You-Emigrating-ebook/dp/B00FV80PTM/ref=sr_1_1?s=digital-text&ie=UTF8&qid=1451572986&sr=1-1&keywords=rachel+tilley

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Because that's the only way she can communicate with him (e.g. to organise pickup of the kid from school etc).

 

I thought you said they are still living in the same house. So will be seeing each other.

She could try speaking to him.


I want it all, and I want it now.

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Because it's not that simple. Some people who are in an abusive relationship need to know what mood/frame of mind the abuser is in so that they can plan their next step to safeguard themselves. Simply ignoring an abuser is not going to make the abuse go away and abusers are not the type to give up if they are ignored - they often up the abuse or do something different to regain control. If it was easy to leave domestic abuse there wouldn't be the need for all of the support agencies.

 

Restraining Orders are hard to work with when you have children involved. A court will not automatically ban a parent from seeing their children because one parent has a RO against the other, so it makes it hard to arrange contact (and it's also hard for the children, they are often the witnesses when RO's are breached and parents are reluctant to use their children as witnesses against another parent in order to enforce an RO at court).

 

My friend has had a RO against her ex husband for the last 7 years, it was an unusual one as it is open ended (he has been to prison for offences against her) yet he has always had 50/50 shared care of two children since his release as he was not a danger to them. The breaches of the RO he has succeeded in doing have been very subtle, but enough to continue to cause her emotional and mental distress. The witnesses were always her two children but she would never ask them to give statements. On the one occasion that there was independent evidence of the breach she contacted the police and gave a full statement outlining all of the other breaches that she'd had to ignore because she didn't want to put her children through the court as witnesses and CPS decided not to run it saying that she "was picking and choosing when she wanted to enforce it." As the kids got older they were reluctant to go and see their dad but CAFCASS reported otherwise so the contact order of 50/50 remained in place. It was only when the one child turned 18 that they decided to sever contact, the other still has to go.

 

My friend has done everything legally and by the book, spent thousands on solicitors fees, yet her ex husband continued to abuse, refused to co-operate, refused to return the children after contact on one occasion and 'kept' them at his house for a month and she had to pay £1000 to go to court to get them back, and there were no consequences for him at all, he was told not to do it again!

 

It's really not easy to sort out at all. If you've never been in this sort of relationship then consider yourself very fortunate, it's hard to comprehend the complexities that people face and the conditions they have to deal with if you've not experienced it.

 

Your post is over the top. There is no violence in this case.

 

Calling someone an abuser doesn't seem appropriate in this case.

Breakups are emotional and obviously involve fights and disagreements.

 

They are still living together also.


I want it all, and I want it now.

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