Issues about where your children, you and your ex shall live are very important when separating.
The key matters you will need to consider, quite apart from splitting assets, are likely to be:
- who remains in the family home with the children
- the cost of keeping two homes when previously there was one
- having housing suitable for your children to stay in
Should I leave the family home when we separate?
It is normally dad who takes this initiative, though not always. Often this is done to protect the children from an unpleasant or harmful atmosphere. However, there are serious implications if you do and they depend on whether you are married or unmarried and whether you rent or own your home. In general the advice would be not to leave the family home, but to apply to court for a shared "lives with" order. You have a better chance of obtaining a shared care order or a generous contact order if you are living with the children when you apply.
What are my options?
It is best to reach an agreement with your ex. A mediator may help in this process. The options are:
- You can agree to stay together in your home but not live as a couple. This is the most difficult thing to do and causes stress all round, especially for the children, but it is realistic for a small number of couples, especially when housing options are restricted.
- You can both move out at the same time and find alternative accommodation. It would be best for the kids if they could remain in the family home, but this is not always possible because you may well need a deposit returned or sale of your home to assist in gaining new accommodation.
- One parent could move out leaving the other parent in the family home. This has serious implications for the moving parent who leaves all their money tied up in a home they no longer live in and they will be considered ‘intentionally homeless’ by housing associations and Councils and they will not help you find a new home.
The moving out parent will often find themselves at a disadvantage if they leave the family home and their children in the care of an uncooperative parent should they later require the assistance of the court to make contact arrangements. Consider this option very carefully if you have not got an agreed Parenting Plan.
What happens if I am married?
If you are married or in a civil partnership you have ‘home rights’ even if you are not on the tenancy or mortgage agreement. You will only have to move out permanently if your marriage or civil partnership ends or the court orders it or you are arrested for domestic abuse.
What happens if I am not married?
You do not have ‘home rights’ which come with marriage and it will depend if you are a tenant or a homeowner.
You are a homeowner if you have a mortgage or share a mortgage with your ex on the family home. You may share the mortgage equally in which case you have what is called ‘joint tenancy’. If one of you own more that 50% of the value, then you have what is called ‘tenancy in common’. This will decide how you split the money when it is sold.
You are a tenant if you pay rent and have a contract. You may not be a tenant if you are a lodger, living with your landlord, living in a hostel, living in supported housing, living in a temporary homeless accommodation.
What do we do if we are homeowners?
- One of you can agree to buy the other one out for an agreed amount. This must be legally verified through a solicitor or a divorce. There are issues connected with changing the mortgage into one person’s name, the Land Registry and obtaining a new mortgage and other matters best dealt with by a solicitor. If you want to buy your ex out, don’t employ a solicitor until you are sure you can get a mortgage or you will waste your money on the solicitor.
- You can both agree to sell and split the profit (or loss) between you. Who gets how much may be decided by mediation or through a financial settlement as part of a divorce or you could just agree between yourselves. Sometimes one party will give the other party a deal in lieu of childcare of or as part of a quick break. Make sure an agreement between yourselves is formal by engaging a solicitor.
Note:Be aware that the Child Maintenance Service (CMS) only honour your agreement or any court order relating to Child Maintenance payments for 12 months after which, if your ex (or you) go to CMS they will revert to the statutory formula. This could result in you paying more because carefully constructed trade-offs will be disregarded.
- If your name is on the mortgage and your ex defaults on payments this could adversely affect your credit rating and prevent you getting a new mortgage so do not delay.
What do we do if we are tenants?
If one of you moves out there is no automatic transfer of tenancy to the other parent. You will have to talk to the landlord to make new arrangements. You will also want your deposit back to help with the rent or purchase of a new home. That usually means the remaining tenant must pay their ex’s half of the deposit and the landlord the full rent. It is in the interest of the leaving parent to ensure this is done formally. If your name remains on the tenancy after you have left, and your ex fails to pay the rent the landlord will come after you to pay. You can move back if your name remains on the tenancy agreement, so long as there are no injunctive court orders preventing you from doing so e.g. a Non-Molestation Order that prevents you from being near your ex or any undertakings, by either of you, not to be near each other.
How do I arrange an end to my tenancy?
Check your tenancy agreement. If it is a ‘fixed term contract’ you can both tell the landlord, you intend to move out at the end of the fixed term, as long as it does not have too long a period left to run. You will both be responsible for the rent until then. If, however, the fixed term is a long way off you will need to agree a change to the contract with the landlord and get it in writing.
If it is a ‘rolling contract’ e.g. you have to give notice if you want to leave and there is no formal end date, you will need to ask the landlord to change the contract. If the landlord or your ex refuses, or the contract does not allow for a transfer of the tenancy to your name there is little you can do through the courts. Housing contracts are considered binding . You will have to accept liability for the remaining length of the notice period. This may mean for the remaining period of the contract you will be liable for half the rent on your old home, child maintenance AND rent on a flat to allow you to see your child. This explains why many recently separated Dads sofa surf, or become homeless and loose their parenting opportunities.
Can I get support with the cost of housing if I leave the family home?
You may be entitled to housing support if you are not working or are on a low income. However, if you are the ‘Non-Resident Parent’ (NRP) – the parent with less than half of overnight stays by the children, this will only be for your needs and not for your children. The Department of Work and Pensions (DWP) will treat you as a ‘single adult’ entitled only to support towards a single room in a shared house.
Children benefit from growing up with whole family involvement in their lives after separation. If you or your ex choose to relocate, shared parenting will be far more difficult or impossible. You need to discuss this with your ex, ideally as part of your Parenting Plan. If you leave the family home, consider where you will live with this in mind. If you are unable to agree arrangements for your children with your ex by yourself of with the support of mediation you may end up in court to determine Child Arrangements. The court will take into account the disruption to a child's life of frequently being ferried long distances. The nearer you are to the children, the better your chances of remaining an important and beneficial parent to them.
If your ex has already re-located (within the UK) with the children you will, be powerless to bring them back without excellent reasons. If your ex plans to move, you may be able to obtain orders or interim orders for them to remain until child arrangements are resolved e.g. a Prohibitive Steps Order (PSO) to prevent relocation or, if the child(ren) are at school a Specific Issues Order (SIO) to prevent your child(ren) moving out of their school, pending a Child Arrangements Order (see Family Court - Urgent Applications).
Type of Housing
When you separate, your income(s) will inevitably need to stretch further if you are no longer living together. Two homes cost more to have and maintain than one. Broadly speaking, if your home has space for your children that you and your ex consider safe and habitable then you should be able to co-parent after separation.
However, when the parent with day-to-day care is set against your children maintaining a relationship with you they may well object to your housing. It may be because it is shared with others or that there is not a separate room for the children or even because the children do not have a room each. Things that did not trouble them before may now do so. The fact that they may have similar issues in their own home may be neither here nor there. You need to consider what type of housing you get or can afford to get, keeping in mind that this may delay or even prevent you from re-establishing overnight stays with your child(ren).
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