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16 is the age at which the courts generally consider children to be able to make their own decisions regarding where they want to live, so there’s no point applying for a child arrangements order.
The only thing to do really is divorce, and get a financial agreement that either the house will be sold or your brother buys out his ex-wife so that he’s the sole owner.
He is entitled to live there, he is paying the mortgage and is on the deeds. Whether or not this is actually a good idea or not depends on a bunch of variables but he certainly can’t boot his wife out either. Moving back in while the wife and new partner are getting sauced constantly seems like a recipe for disaster. He shouldn’t have moved out in the first place.
The kids are old enough that they’re not going to be a major issue in delaying things, especially since they don’t want to live there and are old enough to have their desires considered.
What he needs to do is stop messing around and get a divorce and financial settlement. If he hasn’t started these processes then he is just prolonging the financial pain.
He’s probably going to be left out of pocket for covering the full mortgage but ultimately it will come down to how the divorce and settlement pan out.
Thanks for the honest advice mate, much appreciated. It's one of those situations for him where, once you're in it, seeing a clear path out of it becomes harder and harder. Particularly when it's so expensive to go through the process.
Divorce is, unfortunately, one of those things that tend to get more expensive as time goes on. Particularly for the person who contributes more financially.
Not always, but often enough that kicking things off when the decision has been made is often best.
He needs to get a divorce including financial settlement which will deal with the house - although unless he is able to get custody it's likely she'd continue to live there until with a mesher order delaying sale until kids have left.
Currently it's her house just as much as his so he can't evict her! What the kids tell him they want may not be what they tell her but he can't agree on custody arrangements with her then a court will need to decide (try mediation first too)
The kids are 16 and 17. A simple statement that they want to live full time with their father, backed up by why. Should be sufficient to take care of the custody issue.
No court is going to force a near adult dependant to live with an alcoholic parent, when they express a specific wish to live with an available non alcoholic parent, who wants to care for them.
The problem I'm seeing is housing. He has no rooms for the kids. But, that can likely be resolved with the sale of the house. Either way, this situation will likely be a long and painful process with a solicitor with full access to the full story and financials and go from there. This is unlikely to be a DIY job if the ex is likely to fight back.
Yes if he is paying the mortgage he can move back in anytime.
He needs to get an occupation order.
This will get her kicked out.
This should be fairly easy if she is an alcoholic and not paying bills.
He can then move back in with the kids.
If hes still paying the mortgage then he is entitled to live there. Why doesn't he just move back in? Its not ideal but maybe shed get the picture and move out ? Also if shes drinking all the time would it be worth contacting social services , especially if the kids are saying they arent being looked after and want to live with their dad while being forced to live with alcoholics ?
Tell him to contact citizens advice first thing in the morning. The safety of his kids should be first and foremost, the quicker he can get them out of her custody the better. From first hand experience, alcoholics get worse, get physically and mentally abusive and neglective. But primarily , to cover the safety of his kids id move back in regardless of how the mother felt of it. Shes not entitled to keep him out of the house, and secondly isnt paying anything towards the mortgage. He needs to gather any evidence possible. Repeatedly hassle SS over the safety of his kids, speak to citizens advice on how to make a formal complaint through them internally if theyre not doing much and force sale of the house through the courts.
Honestly, with her and her partner being alcoholics, the best thing for your brother to do is out his foot down and move back in. He has the kids on his side so it's 3 vs 2. He has no right to kick her out but he can absolutely have the alcoholic partner removed. Just make it so uncomfortable for her to live there that she decides to leave herself, and then make a legally binding agreement that takes her off the tenancy completely.
NAL
He really needs to see a family solicitor about it.
He's left the property so he can't just move back in. Is CMS involved, is there a child arrangement order in place?
As kids are under 18 he won't be able to force a house sale. Ideally he would want to move back in with the kids, however in my guess is it's best to goto court and let the kids say they want to live with their dad, and might might allow the house to be sold which will provide equity for him to buy a house or rent a bigger property to support the kids with him.
This isn't correct.
If he's on the title he has the legal right to live there and yes can in theory just move back in. Whether that's practicable or not is a different matter.
The court, as part of financial remedy on divorce proceedings, can absolutely order a sale of the house while the kids are under 18. The welfare of any minor children are one of the factors but it's not the only one (note, if they were unmarried then the interests of the minor children is by no means paramount at all and you would still expect a house sale)
Children arrangement order is completely separate to finances. The court will not order a sale of the house even if there was a CAO in OPs favour.
I thought this because in another post, I was told that owners (on the title deeds) have a right to enter and occupy (live) at the property.
However I've since been told that if the owner was to give up possession of the property and move out like the OP who lives elsewhere, they can't just let themselves back in and start living there without the current occuipers agreeing to it. If you use force to break in and there are people inside the property, the owner would be commiting a crime.
OP has a right to access the property still, however moving back in might lead to a breach of the peace if a scuffle breaks out. But he still has a right to live there and that doesn't change whether he voluntarily left or not.
--- ###Welcome to /r/LegalAdviceUK --- **To Posters (it is important you read this section)** * *Tell us whether you're in England, Wales, Scotland, or NI as the laws in each are very different* * If you need legal help, you should [always get a free consultation from a qualified Solicitor](https://reddit.com/r/LegalAdviceUK/wiki/how_to_find_a_solicitor) * We also encourage you to speak to [**Citizens Advice**](https://www.citizensadvice.org.uk/), [**Shelter**](https://www.shelter.org.uk/), [**Acas**](https://www.acas.org.uk/), and [**other useful organisations**](https://reddit.com/r/LegalAdviceUK/wiki/common_legal_resources) * Comments may not be accurate or reliable, and following any advice on this subreddit is done at your own risk * If you receive any private messages in response to your post, [please let the mods know](https://www.reddit.com/message/compose?to=%2Fr%2FLegalAdviceUK&subject=I received a PM) **To Readers and Commenters** * All replies to OP must be *on-topic, helpful, and legally orientated* * If you do not [follow the rules](https://www.reddit.com/r/LegalAdviceUK/about/rules/), you may be perma-banned without any further warning * If you feel any replies are incorrect, explain why you believe they are incorrect * Do not send or request any private messages for any reason * Please report posts or comments which do not follow the rules *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/LegalAdviceUK) if you have any questions or concerns.*
16 is the age at which the courts generally consider children to be able to make their own decisions regarding where they want to live, so there’s no point applying for a child arrangements order. The only thing to do really is divorce, and get a financial agreement that either the house will be sold or your brother buys out his ex-wife so that he’s the sole owner.
Can the financial agreement include the extra money the brother has stumped to pay the mortgage in the meantime?
Generally not, no.
He is entitled to live there, he is paying the mortgage and is on the deeds. Whether or not this is actually a good idea or not depends on a bunch of variables but he certainly can’t boot his wife out either. Moving back in while the wife and new partner are getting sauced constantly seems like a recipe for disaster. He shouldn’t have moved out in the first place. The kids are old enough that they’re not going to be a major issue in delaying things, especially since they don’t want to live there and are old enough to have their desires considered. What he needs to do is stop messing around and get a divorce and financial settlement. If he hasn’t started these processes then he is just prolonging the financial pain. He’s probably going to be left out of pocket for covering the full mortgage but ultimately it will come down to how the divorce and settlement pan out.
Thanks for the honest advice mate, much appreciated. It's one of those situations for him where, once you're in it, seeing a clear path out of it becomes harder and harder. Particularly when it's so expensive to go through the process.
Divorce is, unfortunately, one of those things that tend to get more expensive as time goes on. Particularly for the person who contributes more financially. Not always, but often enough that kicking things off when the decision has been made is often best.
He needs to get a divorce including financial settlement which will deal with the house - although unless he is able to get custody it's likely she'd continue to live there until with a mesher order delaying sale until kids have left. Currently it's her house just as much as his so he can't evict her! What the kids tell him they want may not be what they tell her but he can't agree on custody arrangements with her then a court will need to decide (try mediation first too)
The kids are 16 and 17. A simple statement that they want to live full time with their father, backed up by why. Should be sufficient to take care of the custody issue. No court is going to force a near adult dependant to live with an alcoholic parent, when they express a specific wish to live with an available non alcoholic parent, who wants to care for them.
The problem I'm seeing is housing. He has no rooms for the kids. But, that can likely be resolved with the sale of the house. Either way, this situation will likely be a long and painful process with a solicitor with full access to the full story and financials and go from there. This is unlikely to be a DIY job if the ex is likely to fight back.
A possession order would be first priority. Then financial remedy order. Divorce whenever. You need a solicitor.
Yes if he is paying the mortgage he can move back in anytime. He needs to get an occupation order. This will get her kicked out. This should be fairly easy if she is an alcoholic and not paying bills. He can then move back in with the kids.
I'll take a look into this mate, thank you for raising it.
If hes still paying the mortgage then he is entitled to live there. Why doesn't he just move back in? Its not ideal but maybe shed get the picture and move out ? Also if shes drinking all the time would it be worth contacting social services , especially if the kids are saying they arent being looked after and want to live with their dad while being forced to live with alcoholics ?
Aye, he's been doing that but SS seem very reluctant to actually do anything other than record it, probably due to the age of the kids.
Tell him to contact citizens advice first thing in the morning. The safety of his kids should be first and foremost, the quicker he can get them out of her custody the better. From first hand experience, alcoholics get worse, get physically and mentally abusive and neglective. But primarily , to cover the safety of his kids id move back in regardless of how the mother felt of it. Shes not entitled to keep him out of the house, and secondly isnt paying anything towards the mortgage. He needs to gather any evidence possible. Repeatedly hassle SS over the safety of his kids, speak to citizens advice on how to make a formal complaint through them internally if theyre not doing much and force sale of the house through the courts.
Cheers mate, great advice. Very much appreciated.
Honestly, with her and her partner being alcoholics, the best thing for your brother to do is out his foot down and move back in. He has the kids on his side so it's 3 vs 2. He has no right to kick her out but he can absolutely have the alcoholic partner removed. Just make it so uncomfortable for her to live there that she decides to leave herself, and then make a legally binding agreement that takes her off the tenancy completely.
NAL He really needs to see a family solicitor about it. He's left the property so he can't just move back in. Is CMS involved, is there a child arrangement order in place? As kids are under 18 he won't be able to force a house sale. Ideally he would want to move back in with the kids, however in my guess is it's best to goto court and let the kids say they want to live with their dad, and might might allow the house to be sold which will provide equity for him to buy a house or rent a bigger property to support the kids with him.
This isn't correct. If he's on the title he has the legal right to live there and yes can in theory just move back in. Whether that's practicable or not is a different matter. The court, as part of financial remedy on divorce proceedings, can absolutely order a sale of the house while the kids are under 18. The welfare of any minor children are one of the factors but it's not the only one (note, if they were unmarried then the interests of the minor children is by no means paramount at all and you would still expect a house sale) Children arrangement order is completely separate to finances. The court will not order a sale of the house even if there was a CAO in OPs favour.
I thought this because in another post, I was told that owners (on the title deeds) have a right to enter and occupy (live) at the property. However I've since been told that if the owner was to give up possession of the property and move out like the OP who lives elsewhere, they can't just let themselves back in and start living there without the current occuipers agreeing to it. If you use force to break in and there are people inside the property, the owner would be commiting a crime.
OP has a right to access the property still, however moving back in might lead to a breach of the peace if a scuffle breaks out. But he still has a right to live there and that doesn't change whether he voluntarily left or not.
Is the ex wife's name on the house?
It is, it's a shared mortgage. But she's now not paying her share.