Unmarried break-up, joint tenant home ownership, with kids - What legal costs to expect?

[Iliketosing]

Putting the questions up top in case the text below looks too imposing...
I guess my questions are:

1. What rough amount of money should I be prepared to have to spend to try and force something to happen? £1000? £5000? £20000? I have no idea
2. Is a mesher order the only likely outcome? That prospect is really contributing to the trapped feeling.

Hi there,

Fairly complex story but no-one ever seems to have a straightforward one!

I was with my ex (never married) for 8 years, had 3 kids together. Split up in March this year, so separated nearly 9 months but still living together.
Ex (mother of the kids, but non-binary, hence why I won't be saying "she") has had various health issues through the years and didn't work from kids being born until start of October this year. In the 2 and a bit years starting just before the eldest started school, until the youngest started school, I spent £32k on childcare in order to not lose my job - my ex had become unable to care for the kids at home and ended up hospitalised for a substantial part of that time too. With me the only earner, I have covered all bills, mortgage, etc, though ex in fairness did pass whatever they did receive in (non-means tested) benefits etc. I was a solo, working parent during the hospitalisations, around 33 weeks total through 2022-2023, and spent much of the rest of the time essentially being my ex's carer.

We bought the house 4 years ago, joint ownership - ex's family provided the sizeable deposit (£90k) while my income got us the mortgage.
House has gained ~£70k additional equity in that time. I suggested buying them out, or we just sell and go separate ways, whatever. Loads of arguments about a fair split - ex believes they should get the £90k plus half remaining equity as they didn't work in order to look after the kids, I believed £90k plus a smaller amount was fair, considering how much I spent precisely because they couldn't look after the kids. I have never disputed the £90k as it was from their family, though I am aware that as Joint Tenants we have 50:50 entitlement.

Eventually I said whatever, let's do it their way, I'll take the hit but it's worth it to be finally free. Half an hour later they said it won't work because they won't be able to get UC with £125k in the bank. Even though they are now working (40-hr week) and therefore have an income.

Since they started working we have begun sharing costs based on take-home percentages (for them it's pay + UC), which is fine, around 40-60 weighted towards me. Trouble is I am now starting to feel trapped and resentful, as they have basically said they will never agree to sell or for me to buy them out, which the bank would allow me to do. They have said they would go for a mesher order if I tried to force a sale, locking everything for the next 13 years. One reason thrown forward is that they'll never afford to be a home owner again if they give up this house, despite me pointing out it is not my responsibility to make them a home owner.
They believe I should simply move out, rent somewhere big enough to have the kids half the time, and they stay in the home we own and pay all associated costs, and I should just be happy to get money from the eventual sale.
I am not happy with this because:

1. I'm not convinced they have the financial means to run a household alone. Despite having a joint account for most of our time together, they never once logged in, never took an interest in anything financial. I don't believe they understand what's required or could act appropriately when things had to happen
2. They don't clean or tidy, they are completely happy living with no floor in site, don't encourage the kids to tidy, haven't wiped a kitchen side in the last 4 months, basically I don't trust them to look after a house I still have ownership of. They do do some things like laundry and kid's lunches, it's just we live in a pigsty except for when I have my weekends at home and spend a day cleaning the place up
3. I don't want to pay rent to someone else when I have the means to own by myself. It feels really backwards
4. It occurred to me reading another person's post that they could try to force money from me towards the mortgage down the line, as with my name on the deeds/mortgage I am affected if they don't pay it.

I know that mediation needs to come first before court, but I'm reluctant to start anything until I know what kind of path it leads down. I am not flush with cash right now, but my finances will improve in the new year.
At the same time I am just feeling worse and more resentful of my ex's presence by the day.

 

[Jumper85]

Hi @Iliketosing,

Answer to question 1 - You could spend a few hundred pounds to just mediation cost and court applications to £10's of the thousands because you're using solicitors and barristers. Spending the money is completely dictated by you and is a matter of choice taking into consideration the relevant risks. One thing I will mention however is thing about the proportion of amount you'd be prepared to spend verses the total equity, it needs to be proportionate. To put it into perspective, I've been to court 8 times in the last 2 years over family matters, I was extremely reluctant to waste money on legal fees and assessed the risks of self-representing. I'd say my costs were c.£10,000 in total and that includes having a direct barrister represent me at 2 hearings.

Answer to question 2 - Only a solicitor/barrister is going to be able to give you their professional opinion based on the experience. @Unknown01 might be able to give an opinion here. Mesher orders are very rarely mentioned from my perspective which would only indicate to me they are rare and an exception but I'd take that with a pinch of salt! Sorry, not much help to you here.

A few points to consider however;

• It sounds to me that you've been the majority main carer for the children for the past few years and possibly continue to be? Have you considered the child arrangements on separation?
• Just because they put in a large deposit, it doesn't mean they're entitled to this back out, the starting point is always 50/50 assuming that you are both needing a home to house the children
• Most suggest on here that you get a child arrangement order firstly so it's secured as to what time they will spend with you, assuming this would be at least 50%, your argument is that you're future needs are just as great as theirs
• Note, their UC claim isn't impacted as long as any proceeds from the sale are used to buy another property, it's only impacted if they choose not to utilise the funds and hold in savings

 

[Ash]

First thing I would say is DO NOT move out - unless you have a Child Arrangements order in place. If you do, then you lose all control over seeing the kids and your ex could use the kids as collateral/leverage to get the best financial deal - it happens a lot.

Second thing I'd say is - be careful what you say - keep some cards close to your chest - being too open about certain things can mean they get used against you to undermine you later. Sadly once separation is on the cards, you can't trust the other person - they are looking out for themselves.

I'm no expert on divorce but - even though you own the house jointly, I am not sure the rules are the same as if you were married - as regards mesher orders.

There is mediation for "divorce" finances and there is "mediation for children's matters". Both can lead to a "consent order". But a different type of consent order. A consent order for finances has some fairly strict rules I think. A consent order for Child Arrangements is the same as a court ordered CAO effectively - it just means you don't have to go to court, but you would both need a solicitor for a one off job to draw up and approve the order.

But re point 2 above - I wouldn't discuss Child Arrangements with ex just yet - focus on getting the financial split agreed.

I also think it might be 50/50 to allow both to afford another home. How much equity is there in total? Obviously she might not be able to get another mortgage though and sometimes a court will do a 70/30 split to allow the ex to be able to buy a smaller home. But - that's in the case of marriage and I'm really not sure if that applies when you're unmarried - I think it's just 50/50.

Be very very careful though - it has been known for an ex to make some allegation - purely to get you removed from the house so they can stay there. Keep diary notes, change all your passwords.

Others will know more about the financial separation aspects than me so hopefully others will respond soon.

 

[Iliketosing]

Hi both,

Thank you for your replies. It really helps with feeling like there is hope for a future apart.

Some quick research suggests Ash is correct on the mesher order not applying without marriage, but I assume a consent order could include blocking a house sale? I doubt it would go 50/50 as our actual gross incomes are very different, but I'm not so worried about the split as I could afford a new house with a far smaller deposit. Though a buyout would be preferable, since I'd be looking to buy the exact same type of house and it's the kids' home.
There is currently around £160k equity in the property. It has been suggested that my ex would only likely get a sole mortgage of ~£90k on their gross income (working in early childcare) so in our area they would struggle to purchase even a 2-bed flat, which likely wouldn't be seen as sufficient to host 3 children. This is one issue, if they couldn't use the proceeds to buy a new home then the money would simply sit in their account, preventing UC. But that bank account would have 6 figures...

On the cards/chest front, I sadly realised that early on, when my ex was openly suggesting lying about me to get me removed from the house or to block me seeing the kids or taking them overseas on holiday (to see my family, as I am not originally from the UK, my ex is). I took notes of these interactions, it has been months since anything that dangerous was suggested though.
My ex does believe they can easily block me selling the house, which has given them a lot of confidence. If this does not turn out to be the case then I don't know what they would start saying about me.

In terms of caring for the kids, I would say that yes, I have been the main carer the last couple of years, but that has changed this year and we are now 50-50. So I would be expecting 50-50 split in childcare arrangements whatever happens.

My biggest decision seems to be whether to seek Childcare Arrangements or the finance split first, but I think the fact I have offered a 22-78 percentage split on the equity and they've turned it down suggests there is no future there for me.
Does that mean Childcare Arrangements is what I should pursue? I guess then my questions become:

1. How do I get the 50-50 childcare set in stone? Is a verbal/written agreement between us enough, or does it need recording via mediation?
2. Once I have this, do I then raise the desire to sell, and if mediation doesn't convince my ex then I have to go through court?
3. Is it a given that my ex has the right to be able to purchase, even if they don't realistically have the means? eg Could/would the court decide to block sale of the house due to my ex not affording to buy a big enough place, or would they say my ex will have enough money to rent so order the sale?
4. Can a consent order prevent the house sale?

I guess the biggest realisation from getting my thoughts down is that I need certainty above all, because then I can move on without all these questions swirling around and making me feel trapped by my ex.

 

[Ash]

Ok I think the main thing is that you're not married, and as far as I'm aware there wouldn't be any consent orders or anything. You are two single people who joint own a house, half each. I don't think you have to agree anything. If you do then it's basically a private thing. Others may correct me if I'm wrong.

With Child Arrangements, whether you're married or not, you're liable to pay Child Maintenance to the Mother, if it is less than 50/50 childcare.

As you can see this gives a soon to be ex (stbx) incentive for it not to be 50/50. She will also have an incentive to stay in the house if she doesn't want it sold and only get 50% of the proceeds.

One thing she could do, even if you're not married - is apply for an occupation order - to get you removed and so she can remain in the house.

As for the steps

1) Child Arrangements order first. This secures your relationship with the kids from the time you separate. A CAO can be in place and kick in from when one of you moves out. Nothing else is legally binding except a Child Arrangements order. Any agreement is a worthless piece of paper as one person can just change their minds overnight. So there are two routes to a Child Arrangements order - one doesn't mean going to court, the other does mean going to court. To get a Child Arrangements order without going to court, you need to be agreed what the Child Arrangements will be, then you each have a solicitor as a one off job. One solicitor writes up the order, the other solicitor approves it and it's then sent to court for sealing. Once you receive the sealed copy you have a Child Arrangements order. The other way is to apply to court for a Child Arrangements order on a C100 form (if you can't reach agreement). For that you need to have had a MIAM (first mediation appointment on your own) and/or tried mediation - either way whether you just go for a MIAM or try mediation you need to be signed off from mediation to apply to court.


I'll leave it at 1) for now! Now the issues here are that your stbx is unlikely to agree to a 50/50 Child Arrangements consent order - UNLESS you agree to her financial demands.

You need to tread very carefully to avoid being removed from the home. I would try to keep things civil, even if living separately in the same house. This is another reason to apply to court for a Child Arrangements order. Your stbx may not know until court papers are sent out and if she does anything particularly nasty after that (eg make allegations) then it'll be clear it's retaliation to your application. Is there actually a risk she could leave the country with the kids by the way?

2) The Finances. As far as I can see, you're not married and you don't have to do anything legal at all - other than with the mortgage company as you'll both be liable for the mortgage presumably. So you could just dig your heels in and say - we're not married - 50/50 on the house. Of course if you do that she'll probably refuse 50/50 for the kids or try and get you removed - so it might be best not to say that directly to her right now.

Would she agree to the house being sold if you let her have a bit more than 50%? I wouldn't agree to anything financial until you have your relationship with your kids secured. It doesn't particularly come down to who has been the main carer during the marriage - more about what parents agree. Courts like parents to reach agreements even as part of the court process and there are opportunities for negotiations (AKA threats) - if they can't then the court will determine the outcome. As someone not yet separated you have a good chance of getting a 50/50 order.

Just to be clear - is the mortgage in joint names? And also is the house ownership (not the same thing) in joint names?

As an unmarried person you are in a much stronger position financially - but in the same boat as everyone else when it comes to child arrangements. If for example you moved out with an agreement only and your ex stopped you seeing the kids, you would be paying full Child Maintenance and spend a long time going through court to get to see them again, and maybe have costs involved as well.

If your ex went nuclear she could take out a non molestation order preventing you from coming anywhere near her - meaning you can't return to your home or see your kids.

This is why it's important to get Child Arrangements legalised asap. Otherwise the kids could be used as leverage.

 

[Iliketosing]

I think you're right about agreeing things as 2 separate people jointly owning a house, but as we are joint, I cannot sell without my ex's permission, which I'm not sure I can force with the kids involved.
But Child Arrangements seems to be the priority for now, anyway.

A quick look at occupation orders seems to suggest they are considered an extreme solution by the courts - I would hope I can avoid that if I'm not doing anything wrong or putting myself at risk? The exception may be if my ex follows through with their threat of lying about me. Perhaps one step I can take is to record future interactions about the kids?

Ok so a Child Arrangements order must be completed by solicitors if in agreement, or broached through mediation if not in agreement. The risk here appears to be that while my ex has verbally agreed 50-50 care for now, if I suggest the solicitor path then they may change their mind and press for majority custody.

Can the mediation route instead be taken first, as it would seem less "serious" than getting lawyers involved?

I have been trying very hard to keep things civil, the hardest time is always when they are making clearly bad choices with the kids, like deciding to go to sleep while the 5 year old is still awake and I'm not home, or not starting their bedtime before I get home late from work at 8pm...
Thankfully, I don't believe there is a risk of my ex leaving the country with the kids except to go on holiday in summer. They had a breakdown when we moved 20 miles and all their family are nearby, so I'm quite confident there.

I don't intend to seek 50/50 on the house as:

• The deposit of £90k (equity is now £160k) came from my ex's dad as an early inheritance, which I have no desire to take from
• I was originally going to press for £60k/£100k (37.5%-62.5%) but;
• I ended up agreeing to meet my ex's demand of £35k/£125k (22%/78%) just to try and get to a resolution and freedom, which they then declined as they realised they would not be able to buy a subsequent property, or get Universal Credit

I believe I have been very accommodating in all conversations so far and could continue to be through negotiations.

Yes, both the mortgage and the house deeds are jointly held in both our names.

I guess the key seems to be reaching a Child Arrangements order without my ex reacting and digging in, then defending myself against any retaliation.
This seems the most challenging part, as once I tell them they need a solicitor it starts looking serious.

 

[Ash]

You can try to do it via mediation but even if agreement is reached at mediation, it still needs you both to have a solicitor to put the agreement into a consent order. That's the only thing that legalises it. You could have an "agreement" drawn up somehow and hope it sticks - then if she doesn't keep to it after separation, you're in a stronger position if you apply to court because it's recorded what was agreed. However that isn't cast iron and it could still take a long time of not seeing your kids (or rarely) to get it through court.

Maybe it's the way to approach it. Say something like, you want everything agreed amicably and formally and for neither of you to have to get embroiled in court proceedings, but you also think it will give greater confidence going forwards, if the arrangements for the children are formalised and not an informal agreement, and if you can draw up an agreement you can ask a solicitor to put it into a formal Child Arrangements order that protects both of you and the kids.

So it's not quite like saying - lets get solicitors involved - it's explaining how to formalise child arrangements.

Your assumption about the house being there for the kids is also an assumption that the kids will live with their Mother. If it's 50/50 child arrangements, you both need a home for the kids, who will have two homes. You'll both be equally providing for the kids in your own homes.

I think you're being quite generous and moral over the division of equity - if it was being fair then you'd deduct the 90k of her inheritance and then slit the balance of the equity. So that would be 35k for you and 125k for her - is that right? Which is what you said they wanted.

But then did you say they realised that isn't enough for them? Frankly that's tough. And would you be able to buy a home for you and the kids with 35k plus your income?

A consent order via solicitors is a lot easier and less stressful than applying to court (although if she won't agree to a consent order then applying to court is your only option and is likely to result in a consent order at court probably - it just forces the issue).

Your ex might think it strange that you're suggesting mediation over child arrangements, if she's already agreed to them. Would you say it was to draw up an agreement or something?