How to proceed with separation

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Ruby20

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My husband has abandoned the mediation process as we cannot agree on what should happen the family home. Purchased house almost 18 months ago with joint mortgage. Previous house was owned by me and mortgage solely in my name which was paid out of my bank account. Equity from sale was used to pay towards new property. We have one child of toddler age. I have applied to the bank and have received mortgage approval in principle to take over the mortgage on this property but my husband is adamant he is not leaving this house. I wanted to avoid the lengthy and expensive court battle but looks like i'll have no choice. Just looking for guidance on best route to proceed and if there is any chance i could get to keep the family home with my daughter
 
Contact Family Law Solicitor and start proceedings for Judicial Separation. Be prepared for it to take 18 months to 2 years.
 
So we will have to live together for 2 more years, this is going to be torture. Have an appointment with solicitor for next week
 
Move out yourself & let him look after your child; you can arrange to pay child maintenance & have your daughter to stay at weekends.
 
Thirsty said:
Move out yourself & let him look after your child; you can arrange to pay child maintenance & have your daughter to stay at weekends.
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No need for the smart comment. You have no idea about my circumstances. I came on looking for helpful advice
 
Good grief.

1. It is perfectly good advice if you feel remaining in the family home would be 'torture'. Your mental health is too important to put yourself or your family through that.

2. It's up to you what you disclose on a public forum, but you can't then castigate others for not knowing all the "circumstances"

3. I fail to understand how my suggestion that you move out is a "smart comment"; when thats exactly what you want your husband to do?

4. I believe moving out would be a strategic move on your part.

5. You may or may not believe the advice to be helpful; nothing I can do about that.
 
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Two points from what I have observed in a small number of cases, 1) don't move out, 2) if its contested 18 month to 2 years is very very optimistic.
 
They've already done the major discussions; they can't agree & next step is into court to let judge decide.

What takes the most time is solicitors trading endless letters; just need to skip that step.

I think 2 years is a reasonable estimate.

Edit: it did used to be the case that 'abandoning the family home' (that was the phrase used, honest!) would weaken the departing spouses case; but that view is seen as rather old-fashioned these days.
 
Thirsty said:
Edit: it did used to be the case that 'abandoning the family home'
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What would be portrayed as abandoning the child would still be very much taken into consideration. If the mother leaves the family home and is unable to organise something similar and suitable to the courts (particularly the child protection officer), they are likely to lose custody.
 
You haven't mentioned it but reading between the lines I'm presuming he's not in a position to buy you out? What is he looking for?

Also was your previous home your family home, ie how long are you married and how much time did you live in the previous home. You don't need need to answer here but these are the kind of things the court will look at.

I will say that if he is willing to drag it out and doesn't respond in a timely manner to the serving of judicial separation you could be looking at a lot more then 2 years. In my case it was nearly 3 years from filing for judicial separation to a decree in court and that was doing well, my solicitor managed to get a first hearing - not normal! We were living together through all of that - not pleasant but its a short period of time out of a whole lifetime.

The other warning I would give is be prepared for it to cost you over 20k ... each!

Given that kind of cost is there any other alternatives you would willing to offer to get back to mediation
 
Leo said:
What would be portrayed as abandoning the child would still be very much taken into consideration. If the mother leaves the family home and is unable to organise something similar and suitable to the courts (particularly the child protection officer), they are likely to lose custody.
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Assuming neither of these parents are drug addicts / abusive / are already in the purview of social services... think about what you are saying.

You are suggesting that

A. The father is unable to provide proper care for his child simply because he is a man?

B. On that basis judge would order a Section 20 review.

C. Somehow that Section 20 review would come to the conclusion that the child's mother was also not a fit and proper person.

D. The child would go into the foster system, even though she has two living, and otherwise normally healthy parents.

You do see how very unlikely that is.

When it comes to court, all other things being equal, joint custody is the norm.
 
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@Leo
So if that wasn't what you meant by:

"If the mother leaves the family home and is unable to organise something similar and suitable to the courts".

What you did mean?
 
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Thirsty said:
@Leo
So if that wasn't what you meant by:

"If the mother leaves the family home and is unable to organise something similar and suitable to the courts".

What you did mean?
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I note no reference to the father there, I said if the mother is unable to organise suitable accommodation she would not be granted custody. So if she doesn't get custody then in most cases the father does. I'm not sure how you read that as the father being unable to provide suitable care simply because he is a man or for any other reason.

I only have experience with a single separation case, but there a mother forced out of the family home (not choosing to leave and leave the children behind as you advised) was clearly told that if she could not provide accommodation of a similar standard, she would not get custody.
 
Custody: unless one parent is judged to not be a fit and proper person (and this is, rightly, a very high bar) joint custody is almost always ordered.

Until such time as this couple appear in court before a judge in regards to JS / Divorce and an order is made to the contrary (again, unlikely) as they are presently legally married they are considered to have joint custody.

In order for your previous comment ( i.e. that mother leaving the child in the father's care would some how remove her right to joint custody of her child) to be valid; that person i.e. the father would have to not be capable of providing care & mother was guilty of serious and continuous neglect by leaving the child there. Let's assume he is a normally functioning adult, as is she and put that one to bed.

In conclusion; leaving the home and letting father take care of his child, will not remove mothers right to joint custody. Any more than it would if father left.

The issue of the family home appears to be the primary concern in this case.

If the couple can't agree between them what is to happen; they have no choice but to ask a judge to decide.

If one parent feels that they would suffer mentally whilst waiting for that court date, then the correct course of action is to leave & let Dad take care of the child.

I also believe it could be a good strategic move for Mom; few people realise what its like to be the sole care provider until they have to do it.
 
Thirsty said:
Until such time as this couple appear in court before a judge in regards to JS / Divorce and an order is made to the contrary (again, unlikely) as they are presently legally married they are considered to have joint custody.
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The case I'm referring to is before the courts, and it was in court it was announced that if the mother was not sole occupant of a house similar to the family home and in the same area, that she would lose custody. Luckily she was in a position to source a suitable house at short notice in time for the next hearing, and joint custody was maintained.

In a contentious case, a mother walking out on her children will be painted as abandonment. To then go on and present a case that she did so to prove that father wasn't up to the job would reflect very badly on her.
 
Assuming the parents in the case you are referring to were married; custody would only be removed from a parent if it was established that they were not a fit and proper person.

I believe the term custody and primary carer are being confused here.

Again, not knowing the details; the overriding concern (rightly) would be the care and welfare of the children.

Assuming contact, visitation, child maintenance payments are kept up, fathers who leave the family home aren't considered to have 'abandoned' their child/ren.

Judges recognise that two adults can find it exceptionally difficult to remain under the same roof.

I'm not suggesting that one parent would try and present the other as unfit. However, having to step up and be the sole care provider might realign some thoughts.

Based solely on what the OP has posted, and with all the usual caveats; my thoughts are that a judge would order the family home sold; the OP is able to raise a mortgage. There's just one child who is not of school age, so its as good a time as any to move house.
 
Ruby20 said:
I have applied to the bank and have received mortgage approval in principle to take over the mortgage on this property but my husband is adamant he is not leaving this house.
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Do you not think it's more likely that a judge would allow the mother to buy out the father's interest (whatever that amounts to) in the house given that she has already obtained mortgage approval? It would be the least disruptive to the child.
 
I suspect (but OP can say if I'm right or not) that they can neither of them raise enough to buy out the others share.

If the child was older then the view might be different, but in this instance my guess is that would be the most likely result; based solely on what has been posted here.

Having said that, we know nothing about other circumstances.
 
Let's skip to brass tacks. The OP has paid the deposit on the house and probably (reading between the lines) most of the mortgage over 18 months. The lender is prepared to accept her as having capacity to repay the mortgage herself. The husband has paid - at most - some share of that joint mortgage over 18 months. Again, reading between the lines, he doesn't appear to be in a position to take on the mortgage himself.

He has contributed very little (it appears) to the equity in the house and will be entitled to very little. The problem for the OP is his ability to drag the process out and incur costs. If he isn't paying a share of the mortgage now, then he's just hanging in there to get something out of the process.

Best option for the OP might well be to make him an offer, essentially to get the #### out of there and agree a separation agreement. Can be painful, particularly as he sounds an undeserving sort, but what you pay him to walk away will be recouped in legal fees saved.

Did this come up in mediation and what was his position? What does he actually want to happen?
 
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