Divorce,child custody, housing, desperate situation

yaubelle

Hello,

I'm posting on behalf of a friend (B) who finds herself in a tragic and desperate situation involving divorce, battle for child custody and the very real threat of being kicked out of her home. Please bear with me if this post ends up being a long one, but I would really appreciate any advice that can be offered.
B has been served divorce papers by her husband. They have 2 children under the age of 5. DH has severe health problems, one of them being he is almost completely blind. The family live together in the same property but he does not look after the children at all and never has really. In fact he more or less ignores the elder child, other than to tell her off.

DH has not spoken to B for about a year. Although they live in the same property, the atmosphere and tension as you can imagine is intolerable. When DH is at home, he occupies the living room and no one is allowed in there. They live in a tiny flat and the kids have to either stay in their room or go into the parent’s bedroom. The TV is in the living room; when DH leaves the house, he takes the TV lead with him so no one can watch the TV. B+ kids were out with me all day last week, DH had been at home the whole day, he does not work;( due to disablilities and current economic climate, is unable to find a job). B came home and started running a bath for the Kids, DH comes in and says he has to take a bath. B avoids all confrontation with him, lets him have his bath, he takes 1 and a half hours. Kids eventually do not get their bath until 9pm.

I believe DH is severely depressed. He was mature student, completed his studies a year ago but cannot find a job. He blames B for everything even though she has been nothing but a supportive and loving wife. She helped him with his degree, financially supported him a lot and gave him 2 kids. I know there are always 2 sides to every story but ever since I have known B, I have always thought her to be an incredibly patient person, honest, kind and decent. She is also a wonderful mother.

Family live in a council property. Both applied jointly for council housing, but he signed the tenancy papers whilst B was away (attending funeral of her father) so he is the rightful tenant of the property and she and kids are dependants. DH is not working and gets legal aid. His solicitors sent B a letter informing her that she and the kids had 2 weeks to move out of the flat, even though she has nowhere else to go and they would be homeless.

B is an EU citizen; husband is non -EU citizen and does not have indefinite leave to remain stamp in his passport. DH is now trying to win full/ or partial custody of children. He is completely unable to look after them, never has looked after them, and in fact hardly interacts with them at all now. B has always effectively been like single parent bringing up the kids on her own as she gets no help whatsoever from DH. DH is on benefits, B is self-employed and has been told she's not entitled to legal aid as she earns above threshold (£8,000).

DH entered UK on visa to visit relative, visa expired, he was effectively an illegal immigrant, marries B and then becomes entitled to all benefits of UK/EU citizen through her. I initially could not understand why a man who shuns all responsibility for his kids, appears to want nothing to do with them, would then want to fight for custody. But after speaking to someone today, the penny finally dropped. I believe he is fighting for custody so he can retain the right to remain in this country after divorce and can continue to enjoy his benefits which he became entitled to once he married her. B terrified of losing her kids.
B’s income is currently very limited. The solicitor she employed has given her conflicting advice/information and B has little faith in her. B was effectively cheated out of her council flat as both her and DH applied for housing together, yet he was the one who signed the tenancy agreement. How could the council have allowed this? When she confronted them about this, they said there was nothing they could do as the agreement had already been signed.

There will be a court hearing to decide who will live in that flat. DH I believe is in a strong position as he is the legal tenant and then there are his health issues. I understand the judge while make his/her decision on what is best for the kids. Would they decide that the kids are better off living in the family home with the father and B has to move out? And social services would then have to provide the father with the help he would need to look after the kids? Could a scenario like this occur?

What should B do? What are the chances of DH winning custody of kids? What is the likelihood of B being able to become sole tenant of the family home and live there with kids? B is German, what would happen if she were to return to Germany with the kids and let DH start fighting for custody whist she and kids are in Germany?
Sorry for such a long post. I would be so grateful for any help/ advice given as I feel so sorry for my friend in this terrible and very sad situation. All she ever wanted was for her kids to grow up in a loving home with a mother and father and she was willing to put up with DH’s unreasonableness if it meant keeping the family unit together.

Many thanks in advance

gotnodosh

Hi, I don't know all your answers but if she wants to take the kids out of the country permanently to live in Germany she would have to get an order from the court to do so. But then again, she might not have to as the father is not British. My advice would be to go and see a solicitor for a free half an hour. Make sure she has the questions ready so she uses her time constructively.

Good luck to your friend.

deedee71

AFAIK children of German women have to be registered with the consulate here in the UK, and depending on whether they have dual nationality passports it may be easier to take them out of the country. German law is very biased towards the mum.

JoJoB

I think your friend should call womensaid for advice on this situation. It is clear he is being abusive to his family and his actions could come under the remit of domestic violence (he does not have to physically harm them for it to be classed as violence - it can be emotional abuse too).

How desperate is she to stay in that flat? Would she consider a refuge for a while to get herself and the children out of that situation? To have his treatment of herself and the children on record as the reason she moved out will certainly help in terms of future custody/access wrangles. The refuge will certainly help with getting her re-housed and she would have a safe place to stay while something suitable comes up through her local authority.

As for the court hearing your friend should get a different solicitor if she is not confident with her current one. Is the court hearing for an occupation order or for custody of the children? It is unlikely that the court will make her leave before any custody issue is resolved as in most cases she has the right to remain with the children in the matrimonial home even if he is the sole tenant. If his abuse can be proven then the court has the power to transfer the tenancy into her name.

Personally I think a refuge would be the best option while she figures out whether she would be better off near family in Germany or making a fresh start in a new flat in the UK. The important thing is to remove herself and her children from such a terrible situation and womensaid will be able to help her do that.

gratefulforhelp_2

This man is an abuser. The woman needs to find a family law solicitor she finds she has confidence in, and maybe someone who also haas immigration experience.
She should be careful about removing kids from the country as it could be perceived as kidnapping.
Does the DH remain at home with the children when she works?
Echo what is said about womensaid.

AnnaLicious_2

There's something odd about what you said on the housing. You said he didn't have unlimited leave to remain but is in a council flat? I came here on a marriage visa and you go through stages. Stage 1 - fiancee visa, stage 2 - marriage visa (2 years limited leave) - stage 3 - unlimited leave to remain. You only have recourse to public funds when you hit stage 3. If he is living in a council flat and receiving benefits he is at stage 3. Your friend may be unclear as to where he is at with the visa and gave you some misleading information. He doesn't need custody of the children to stay, but he will then receive tax credits and CSA from your friend.
Has she phoned the housing authority to ask for alternative housing? She needs to phone the tomorrow when they open, tell them she's about to be made homeless through no fault of her own. She has a letter from the solicitor telling her to get out. She will go top of the list with children. She may end up in a homeless family hostel, but it's a roof over her head.

Soubrette

I agree AnnaLicious - my husband is a Canadian immigrant staying in the UK under a working holiday visa, marriage visa and then indefinite leave to remain, until he applied and got indefinite leave to remain his passport was stamped 'no recourse to the public purse'.

That means no benefits.

If he has indefinite leave to remain then he has virtually the same rights as a citizen (can be deported for a major crime and loses ILR if he leaves the country for something like 2 years).

RAS

AnnaLicious wrote: »

There's something odd about what you said on the housing. You said he didn't have unlimited leave to remain but is in a council flat? I came here on a marriage visa and you go through stages. Stage 1 - fiancee visa, stage 2 - marriage visa (2 years limited leave) - stage 3 - unlimited leave to remain.

Soubrette wrote: »

I agree AnnaLicious - my husband is a Canadian immigrant staying in the UK under a working holiday visa, marriage visa and then indefinite leave to remain, until he applied and got indefinite leave to remain his passport was stamped 'no recourse to the public purse'.

Hi guys

The information you have given is correct but only applies to non-EU citizens who marry British passport holders.

It does not apply when a non-EU citizen marries an EU citizen, unless one has also applied for and obtained British citizenship or Indefinite Leave to Remain (ILR).

Contrary to a lot of red-top stories, EU citizens and their families have no right to benefits or housing in Britain. The EU does not support relocation of citizens or benefit-shopping.

It is only when an EEA citizen comes to work in Britain that they acquire the right to the same benefits and facilities as British citizens on the same grounds– it is all about “mobility of labour”.

So it is highly probable that the only rights this non-EU husband has to housing and benefits is because his EU wife is working in Britain as an EEA migrant worker.

The difficulties she has are:

1. If he has been caring for the children while she works, there have been instances of husbands obtaining custody of the children on marriage break down – speak to far about this.
2. If she continues working in Britain, he will retain the right to facilities (like housing) and benefits until they divorce.
3. If she stops working, she will be temporarily entitled to benefits as a job-seeker, for 6 months or so. Thereafter, she will rapidly lose her entitlement to benefits in Britain.
4. If she stops working voluntarily, she will be sanctioned (lose her JSA for up to 6 months).
5. If she and the children return to Germany, her husband almost certainly has the right to live there too, under Human Rights regulations, to maintain his right to family life (contact with the children).

I would suggest friend needs to take herself and the children to her nearest embassy and see if she can get them passports.

Whilst there she needs to get consular advice as to how and whether she can remove herself from the UK to the other country without been seen to kidnap the children.

She also needs advice on how and what benefits she might be able to claim if she returns to her country of origin.

I would also advise that she contacts and explore her options with one of the domestic violence charities. I suspect that if she had to relocate in these circumstances, the issue of sanctions might be less of an issue. Longer term, I am not sure she would be entitled to continue claiming benefits unless she works, but see 2 above.

On a very very pragmatic note, which of this couple receives the Child Benefit payments, because that is often key to who is able to claim other benefits for the children?

Kalama

Hi - couldn't read and run. Can't offer much advice but what I can is below.

RAS is 100% correct with regards to benefit/public funds entitlement as a spouse of an economically active EEA national. However, see below for what may change his entitlement to the council housing/benefits etc.

It is very important that, if she hasn't already, your friend gets in contact with UKBA and informs them that the marriage has broken down - she needs to be very specific with dates and circumstances. Her husband is entitled to live in the UK only on the basis of the marriage being subsisting - as soon as UKBA know it is not his status will become an issue for him - this may be beneficial to your friend in relation to custody. He should have informed UKBA of his change in circumstances as soon as possible ("regularising his stay") - based off what you have said it is unlikely he has done this.

If your friend hasn't already she needs to go over this with her solicitor. Apologies if this has already all been done.

yaubelle

Thank -you all so much for your replies. You have been so helpful as when all this started my friend just didn't know what to do .

At least now she can look into the pointers you have given her.

I have told her about this thread, so she can logon and read for herself.

Once again, thank-you so much for all your help.

Yaubelle X

RAS

She really needs to get help regarding the divorce law on three country marriages. I have a feeling that until he filed for divorce, she could have returned to germany with the children any time. However, now he has filed for divorce, I think she is trapped here an removing the children would be seen as kidnap.