Presenting a sensible proposal to the Court
The most important document you ultimately want to receive from the Court is your stamped consent order. That consists in one of the usual format Court documents containing two lines which refer to the attached document, prepared by you or your solicitor as a draft.
The most important issues you have to cover in that document are arrangements for your children and arrangements for your money.
Both of those interface with the house you now live in. If you want the Court to approve your proposals they must be fair and reasonable. But your circumstances are unique. That means the judge has to have a broad discretion in deciding whether to accept your proposals.
It follows that if you go before the Court with proposals which are illogical or unfair or fails to comply with the law, you will not get your order. Instead, the court will make appropriate decisions for you based on whatever facts are available to him/her. He/she will most certainly not help you to produce an agreement based on what you want.
Your house is an important element for mediation
Many family law mediators, come up “through the ranks” of specialist family lawyers, counsellors, or some other service about family relationships. Although such a background can provide immense mediation ability to deal with relationship issues it may not help with an understanding of money issues like your house, pensions, business and other financial affairs.
As far as your house is concerned, it is also helpful if you have agreed its approximate value. Hopefully, you can agree the value. If there is any doubt, then you should obtain a jointly instructed professional valuation. You will also need a note from your lender, if any, as to the amount outstanding on your mortgage.
We have referred to the two of you. In practice, if you have children, their interest is paramount and in dealing with their interest the most important element is where they will live and with which of you.
We will now cover rights and obligations in different circumstances. It’s possible that only one of these will apply to you.
One of you owns your home outright
The basic law is that the house is yours and you can do what you like with it, including living in it or selling it.
As part of a divorce or civil partnership settlement, the non-owner may be able to claim a right to a financial interest in the property or even a right to continue to live there. This right to continuing occupation will be certain if there are children of either party who have no obvious alternative accommodation.
It is unlikely that the Court would grant a right to continuing occupation to a non-owning party living alone. Instead, some value would be taken into account and settled in some other way.
If the non-owning party has contributed financially to improvements to the home or to mortgage repayments, then it is almost certain that he or she will be entitled to some proportion of the value of the home, as and when sold.
Separate your joint ownership
First, check the registered particulars to make sure that your name is there as a registered proprietor. You can do this by searching at the Land Registry. People in your position make similar searches every day, so you do not need to use one of the firms that advertise on the Internet to do this for you.
If there is no document at the Land Registry that specifically states the percentage share in the property owned by each of you, it is probable that you own it 50-50. If you think it is possible that the split is different and your ex-partner appears unwilling to discuss it, then you may need to ask your solicitor for help in or obtaining your title documents.
In any event, you should immediately change the way the property is held so that your present joint ownership is separated. That is rather like dividing a single large bowl of custard into two smaller bowls so that each of you can walk away with his or her own bowl.
To make that change is very simple indeed. You do not need a solicitor. Read this article about ownership of property and then buy a tenants in common agreement. You have now separated the interest of each of you. At this point your interest will be 50-50 but you could now arrange a different proportion as part of your settlement agreement.
Adjusting the rights relating to your home
When two or more people own any property, any one of them can demand a sale at any time. That is the basic law. However, that can be overridden in a Family Law Court.
The Court will expect that you have made fair and reasonable arrangements for the future housing of yourselves and your children. If you have children, the Court will first decide which of you should have custody of them. That could be a single one of you or both together, sharing parenting in a sensible way.
If you are in dispute about custody, that will be resolved at the same time. It is then most likely that the Court will order that the parent with custody lives in the house with the children.
(Note: custody and access are different. The most common order is for “joint custody”. That does not mean that the children have to have two homes. It simply makes clear that you have equal responsibility for absolutely everything connected with the welfare of your children.)
Of course, there is nothing magical about keeping your house, just because it is where you live now. In many cases there are good reasons to sell and find new homes for all of you. It is all a question of balance, convenience and money.
You just lived together
If you have just lived together without being in a civil partnership or married then you do not have rights controlled by the framework of family law. That means if either of you wants to sell then the other will be compelled to do so. The net proceeds of sale will be divided 50-50 or in whatever other proportion you have previously agreed.
If one of you wishes to remain in the house then that one must buy out the interest of the other of you. If you are unable to agree on a price then you must sell the property, when of course either of you may bid for it again as a buyer.
If you occupy your home under an arrangement whereby you are able to increase the proportion you own from time to time through payment to your housing association or council, then you will need the consent of that organisation to whatever new arrangement you would like to adopt.
You should also find out what new housing arrangement might be available to the one of you who leaves your house in order to avoid being deemed to be making yourself intentionally homeless.
You rent your home
If neither of you own the house you live in, then of course there is no money value which could be in dispute. The issues remaining are largely practical.
You should read your tenancy agreement very carefully. Check whose names are on it and whether any arrangements you now propose between you can lawfully be carried out under the terms of the agreement. Check also how long it has to run, whether it may be terminated early, whether it can be renewed, and any other terms which might affect a decision you might make.
It is most likely that both your names will be on the tenancy agreement. In that case whichever of you will be continuing to live in your home must make a new agreement with the landlord. Unless you have had some difficulty in dealing with your landlord in the past, that you should give no difficulty.
If you fail to make a new arrangement but simply leave the property, you remain liable to pay the rent and abide by the other terms of the tenancy agreement.
Decision? Talk to the Mediator
We are very happy to talk to you about the precise role of mediation in your divorce or separation. We can help you with all property and money issues and uncontested questions relating to your children.
We are also flexible about the circumstances and arrangements for meetings. We can arrange multiple meetings if you require. These could be either face-to-face or via the Internet. We know that family disputes sometimes move in unexpected directions. Our wide experience enables us to help you in most circumstances.