Readers' Questions - We've already split up, but there's an unresolved problem...

Dear Mary,
Me and my ex girlfriend (who was German) bought a house together approx
4 years ago. A year after we split up and she went back to Germany. I have not heard from her in 3 years but her name is on the mortgage and house deeds. Despite trying to reach her at her last known address, I have not heard anything. How can I get her off the documents and does it make a difference that she has not been in the country for over 3 years?

On the face of it, your girlfriend is entitled to half your house. You will need to apply to the court to claim that you are entitled to all of it, or substantially more than half. In order to do this and get the house put into your name only, you will probably have to make an application to the court under the Trusts of Land and Appointment of Trustees Act. You will have to show the efforts that you have made to contact her and the court will probably want to be satisfied that you have made every effort to serve her with the court papers. The three year absence isn't particularly relevant ,except that it means that she hasn't paid anything towards the house during this period. If you can't trace her and the court thinks that it ought to be transferred into your name the court has the power to 'execute' the transfer document as if it was her.

You may have to spend quite a lot of time and patience to get this all sorted out, but it will be worth it as there are also other implications. If you own the home as joint tenants (rather than tenants in common) she would automatically get the house if you died. For more details see pages 10 and 11 of our Housing leaflet (350 KB).
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Hi Mary,
I split up from my partner 18 months ago. We have three children, one of which is registered disabled. Last year we had a fire and my house burnt down, although the insurance is rebuilding it. My middle child is frightened about going back, so I want to move but my ex wants half the property equity - if I give him this and I won't be able to afford to buy a house. Please help!
I have heard this is changing in law, is this correct?

This does sound like a very stressful and sad situation, but don't worry - I think there's a way through it.

You don't say whether the house is owned in joint names or just yours. If the house is in joint names you need to go and see a family solicitor (follow the link at the right of the page to find a member of Resolution, family law specialists). A solicitor can help you make a claim (probably a combined application under the Trusts of Land and Appointment of Trustees Act and the Children Act) arguing that you should have the house as a home for the children until they grow up. This would normally be until your youngest is 18, but could last for much longer if your disabled child continues to need housing after that age. You should be able to get an order that would let you move and hold a new house on the same terms as the old one. This would mean that your ex-partner would not get his share until the children no longer need to be housed.

If the house is in your name only, then your position is slightly easier. It would be up to your ex to bring the claim, so you should just stick to your guns for the moment. If he does try to make a claim, the Trusts of Land Act and the Children Act will back you up.

For more information see the "what happens if we split up?" sections on pages 10 and 11 of our guide to Housing & LivingTogether (350 KB).

The Law Commission looked at whether the law should be changed to give cohabiting couples more rights, and concluded that it should. However, the government have announced that they are waiting to see the cost implications of a similar law in Scotland. I think this means that any changes have been indefinately shelved so i wouldn't hold your breath for any change.
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Dear Mary,
I have a 13 month old daughter with my ex partner, we are both seeing new people. My ex is on my daughter's birth certificate. My new partner has got a job in Mexico. I was just wandering where I stand with regards to moving to another country with my daughter. My ex sees our daughter for 4 hours a week, he lost his job last summer and has not paid any money towards my daughter since then.

Because your ex is on the birth certificate, he shares parental responsibility with you (for more information see 'What is Parental Responsibility?' (73 KB)). But this does not mean that you are prevented from going abroad. You do not need his consent to go, but he could apply to the court to stop you, if he felt strongly about it. Generally the courts don't stop a parent moving with a child, especially a young child with a mother, but you might have to make formal arrangements for contact. This could be by telephone or webcam or e-mail, as well as visits. A family mediation service might be able to help you reach an agreement with your ex (see ourFamily Mediation pages for more details). The fact that your ex has not paid any maintenance is not enormously significant as the court will look first at the welfare of your daughter and what is in her best interests.
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Dear Mary,
I have owned my house since 1984. I moved out in 1995 until 1998, renting my house out. During this time I lived with the father of my two children in his property. I moved out after splitting with him in 1998 and returned to my own property. Since then we had an on/off relationship, he never moved in, paid no bills, did not contribute to the upkeep. He wants £30,000. What rights does he have?

From what you tell me I can't see that he has any right at all. Cohabiting couples have no responsibility to financially support eachother - so he is not entitled to this (or any other amount) as maintenance. Not only has he never contributed to your house, he has never even lived in it, so I can't see that he has any claim to a share of your home. My advice is sit tight - if he wants to take you to court he'll have to find grounds for it, and, from what you say, I don't think there are any.
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Dear Mary,
My lesbian ex-partner and I had a commitment ceremony in front of our families and friends in 1995, and intended from the outset to have children. I conceived our child via donor insemination in 1999 and he was born in February 2000. My partner was present at the scan, the pre-natal lessons and the birth, was given maternity support by her employer, and was in every sense except the biological and legal, his parent. Her parents are his grandparents; her siblings are his uncles and aunts; their children, his cousins. We shared all the expenses of parenting and general daily living, including jointly owning a home. We intended to have a second child, using the same donor, but this time with her as the biological mother.

Then, after a period of relationship difficulty, we separated in November 2002. For months, I asked her for contributions to his expenses, in particular for his nursery fees. She vacillated for an extended period, and eventually paid me £100 in cash towards nursery fees sometime in the spring of 2003.This is the last child support she ever paid me. She told me the next time I asked her that, on reflection, she didn't feel she owed me anything (although I wasn't asking her for maintenance for myself, only for our child). She added that the CSA couldn't get her.

Had we stayed together for the then requisite three years, we had intended to obtain a joint residence order, so that she would have a measure of parental responsibility. Had a civil partnership been an option we may well done that, but it wasn't.

I feel that I should be able to claim support from my ex-partner for our son, now that the principle of equal treatment for same-sex couples is established. If I approach the CSA, what will they say? Will they focus on the biological father, instead of the person who not only was, but is, his other parent, including having him stay with her several nights a week, every week? I doubt that, if pushed, my ex-partner would feel able to deny that she is the parent of our son - will the CSA take these facts into account?

Unfortunately, your ex is correct - she cannot be forced to pay child support as the law does not recognise her as your son's other parent. If you had formed a civil partnership (if that had been possible at the time) the situation would be very different, but unfortunately that doesn't help you now.

The Child Support Agency will not pursue your ex partner. And to make matters worse, if you are on benefits they do have the power to pursue the child's biological father. If you do not co-operate with this, they can punish you by cutting your benefit for up to three years.

I'm sorry that I cannot give you better news. It's a very tough situation and it's hard to see what you are supposed to do. I think your only option is to try again to persuade her. Family mediation might help, if you can get her to go. You could use it to deal with all aspects of arrangements to do with your son. For more information on family mediation, and to listen in on a session with our podcasts, go to our dedicated Family Mediation pages.
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Dear Mary,
What is the legal position of a cohabitee whose owns her house with an ex-partner who has no part in the upkeep of the property? Despite attempts to reach the ex-partner to notify him that she wishes to sell the property, he cannot be located as he appears to have deliberately disappeared to evade creditors. What action does the cohabitee need to complete, presumably through the courts, to put their house on the market in these circumstances. Any assets of the sale due to the ex-partner will undoubtedly be seized by the bank as mortgage holder and a creditor.

If you're in this situation, you need to see a solicitor for detailed legal advice. You will probably need to apply to the court to get the house put into your name only using the Trusts of Land and Appointment of Trustees Act. You will have to show the efforts that you have made to contact your ex. These applications often take quite some time, so it's best to get started as soon as possible.

October 2010