Solicitor’s answers

Posted By: Daniela on 22/10/2022 at 21:11

1. If STBX goes to a solicitor, can he be told that he has rights to stay in the flat? And what kind of rights could they be?
Will this affect my Occupational order application?

Whilst he does not legally have entitlement to remain in the property because the tenancy is in your sole name, he can make an application to the court for an Occupation Order for himself.  However, a court will be mindful of the fact that you have your child in your care and that you do not have the financial resources to re-house yourself elsewhere at this stage.  It is therefore better that you deal with your Non-Molestation and Occupation Order application at the same time.

2. Can he (under this new divorce law) delay/ block my Final order application due 30th Nov, by applying to court saying he wants to sort out finances first?

He can apply to say that he will suffer financial hardship if the final order of the divorce is made before resolution of your financial matters and at this stage it is difficult for me to say whether he will be successful in such an application as I am not fully aware of your respective financial positions.  However, if he does not make such an application or request, then you can proceed to apply for the final order on the 30th November.

3. Can I apply for a Clean break in my case?

Even if you wish to have a clean break settlement in your case whereby you retain your assets, etc. and the same applies for STBX, you will still need to have a Consent Order if it can be agreed in this way dealing with this properly to ensure that there is a clear dismissal of all of the claims that either one of you could make arising from your marriage within the order.  As explained at our initial meeting, in the absence of seeing your respective financial disclosure, it is difficult for me to advise you accurately whether a clean break is fair in the circumstances of your case.

4. If Clean break is not an option for me, then what are the best steps to sort our finances?

My advice is to exchange financial disclosure with STBX either via solicitors or mediation.  If he isn’t prepared to engage then you may need to issue court proceedings to deal with it, even on a clean break basis.  Your financial claims against each other will remain open even after your divorce has concluded until you file an order by consent setting out the terms agreed, which includes a clean break.

5. If STBX interferes or interrupts my time with our son, on my scheduled days, would that be seen by the court as he is the main carer, therefore he can get more time/ % custody of our son and claim child benefits etc? Is there something I need to consider or be aware of, so the child benefits and custody are not taken away from me?

In the absence of any safeguarding concerns although I appreciate in your case that your child has been subjected to emotional harm, courts are more supportive of shared care arrangements between the parents.  This does not necessarily mean that there needs to be an absolute division of time that the child spends with each of you but there should be equal decision making ability as both you and STBX have parental responsibility for the child.  Unfortunately, Child Benefit cannot be divided between you and therefore one of you will need to receive it.  A court has the ability to make an order that a child should live with both of their parents in which case neither one of you would have more power than the other and this can equally be agreed between you.  At this stage, it is difficult for me to say what stbx’s position is going to be as you are currently both living under the same roof.  I am happy to put forward the co-parenting plan to him to make the position clear on your part.  You may also find it helpful to have a look at the website for CAFCASS, www.cafcass.gov.uk , who are often instructed by courts to provide letters and reports regarding contact arrangements and they have some helpful information on their website for parents and I also attach a booklet prepared by them which sets out some helpful information and also contains a template parenting plan although I appreciate that you have already got one drafted in your case.  Once we know more about stbx’s position in response, I will be able to advise you more accurately.  However, the focus should be on the number of nights that Benjamin spends with each of you and who is the one who is meeting his basic day to day needs.

6. Would you be able to write a note to the landlord to mention that stbx has no legal rights to the flat?

I can make clear that the property is in your legal name and that you have given notice that stbx needs to vacate the property.  However, I do not know if they are going to wait for you to apply for an Occupation Order owing to the fact that they changed the tenancy agreement into your sole name and removed his name.


Latest Comments 4

re: Finances. Solicitor mentioned that i do not need to wait for finances to be sorted before i apply for Final order as there's no financial gain for me from stbx. So I will apply for Final order on 30th Nov, providing he doesn't block it by requesting the court to wait for finances to be sorted first. Hope everything will go to plan. So, from what you are saying, I should stay put until Final order is approved, then sort finances after, by sending the Form E to stbx and fill in mine and apply for Clean break. Is that correct? (That is my intention anyway) By applying to court for Clean break - do you mean directly to court or via divorceonline? From what you say, it looks easy to DIY my finances. I will try and do that after Final order. Thanks a lot for your suggestions.

22:16 23/10/2022
Daniela

Hi Suzy. Solicitor suggested to apply for both Occupational and Non-molestation order in the same time after she sends him the Notice letter for him to leave. It seems that she believes this might be the only option since the landlord is not on my side on this.

22:01 23/10/2022
Daniela

Re. Financials - even though your STBX has no assets he still needs to complete a form E / full financial disclosure if you have to get the courts to create a financial order because he won’t mutually agree a Consent Order. You need to think carefully about the benefits of even self representing to get a financial order at this stage as therein lies solicitors fees and possibly 18 months of legal letters and court dates. You could do a lot yourself - send your STBX the form E (it’s in the free UK divorce forms resources in the hub under Divorce Admin) and complete your own. Apply to the court for a clean break/financial order and the court will tell your STBX to provide his financial info/form E. I would ask the solicitor what court fees would be involved and what her fees would be to support you in this as a DIY process. Although yes - it’s worth doing ultimately - do you really need to do it right now before the final order is applied for when there are no actual assets to split? In your case I would ask if there are any disadvantages to applying for the final order now (as we already discussed a while back - did you get a response to that in your discussions with the solicitor?) and if your Ex takes court action against you, that might be a good time to apply for a Financial Order, or wait till he is out of the property and then begin the process. Either way it looks like getting him to leave is still a key action. Have you asked your landlords if they will accept a solicitors letter confirming your STBX is basically squatting, so you can evict him and change the locks?

07:56 23/10/2022
suzy Miller

Hi Daniela - out of interest, why does the solicitor believe you need an occupation order (and is she suggesting you combine that with a request for a non-molestation order at the same time?) - when your ex has no legal right to remain in your flat? Is it because that’s the only way to evict him?

07:39 23/10/2022
suzy Miller
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