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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11425
Experience:  30 years as a practising solicitor.
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I officially separated from my wife in November last year

Customer Question

I officially separated from my wife in November last year after being detained and charged by the police for trying to gain access to an adapted property we rented from my family with our 2 Sons which my wife was refusing me access to after an argument. It is an adapted property as my oldest Son is severely disabled. I was charged with a breach of the peace by the police for banging on my own front door to try to get in to retrieve property belonging to me. Part of my bail conditions stipulated I wasn't allowed to approach the house. I was found not guilty of any offence in court in January but my wife and my cousin (who is the landlord) are not allowing me entry to retrieve my personal belongings. This has caused obvious friction in my family and is a great source of anguish to me as my Dad died suddenly not long before this incident and a lot of the stuff was personal momentos he wanted me to have. My wife isn't objecting to me having any of it back but still refuses to let me in to get it. I was told by my cousin they have consulted their lawyer and they have removed me from the rental agreement paperwork and I don't have a leg to stand on in my attempts to gain access. The police insist they can't get involved as it's a civil matter. They have said if I go to the door and am refused entry and my wife phones them I will be arrested again. I am fighting for access to my children but the lawyer acting for me doesn't seem to know what my legal position is on this matter and frankly doesn't appear to be interested. I am so distressed about this, I don't have my birth certificate, driving license, passport, nothing. I believe my wife doesn't want me to gain entry because she doesn't want me to get a lot of the stuff back as she wants to hold on to it despite her protestations to the contrary. I also want to have a check around to make sure I don't miss anything I've forgotten about.
Submitted: 4 months ago.
Category: Scots Law
Expert:  JGM replied 4 months ago.

Thank you for your question. I am a solicitor in Scotland. First thing: change your lawyer if you aren't happy. Get your new lawyer to write to your wife or her lawyer threatening an action of delivery and dmages if she doesn't let you have access to get your belongings. In passing I would comment that if the lease was in joint names the landlord can't just remove you from the lease. That would be a breach of contract. Your new lawyer should also progress the children issue by getting a child welfare hearing before the court. From your narrative you have to start fighting back a bit. You have established your innocence in the criminal court and you now have to raise civil proceedings to get your things back and to see your children in respect of whom you have equal parental rights. I hope that helps. Please leave a positive rating so that I am credited for my time.

Customer: replied 4 months ago.
I have been at court twice for child welfare hearings so far to get time to see my children. The latest welfare hearing was on Tuesday. The judge, a lady called Sheriff *****, *****ounced at the start she only had 15 minutes to hear the case. At the last hearing in February I was awarded time with my youngest Son from 3pm on a Friday until 6pm on a Saturday. I have stuck to those times diligently and faithfully for 3 the months between the 2 court appearances. That time granted, however, was based purely on the fact that was what my wife was proposing 'allowing' me to have rather than any achievement from myself or my lawyer. I was granted nothing for my eldest Son based on my wife raising doubts I could look after him properly without her being there. This was despite the evidence I had proving that I had, only a year before, cared for both my Sons whilst my wife was on holiday with her friends. I have worked very hard to disprove those lies by having health experts observe me doing the things my wife claimed I couldn't and confirming it to me in writing. Based on this on Tuesday the other side proposed again to 'allow' me 7 hours with my eldest Son during the day on a Saturday and only the same time again for my youngest Son. All along I have wanted 50/50 custody. They also made a series of allegations about me having anger issues due to me venting my frustration at the situation to my wife by text and on social media. None of the texts or posts were harassing or threatening, just more or less 'venting' on my part, I was very careful about what I said, especially when I was trying to get my wife to answer me when I was asking her specific questions pertinent to my time with my youngest Son. I asked for an example of what messages they had an issue with and they didn't answer. The judge criticised me about it before admitting (when I asked her) that she hadn't actually read any of them. My solicitor, despite me giving him numerous examples, refused to highlight my wife's difficult behaviour using the excuse that it would cut no ice with the judge as she had made it clear she didn't like me so there was no point and that I shouldn't have sent the texts no matter the provocation. Unbelievably he stated I admitted the messages were wrong and that I was seeking medical help for my anger issues, none of which I agreed with. I also asked him to highlight that my wife had flouted instructions given by the judge at the hearing in February, specifically that my wife and I had both to personally deal with the handover of the children. I did the handover myself in person every single time. My wife did it once then claimed she was too scared to. This whole process, at a conservative estimate, has cost me in the region of £10,000 so far. I am struggling to afford any more, I am heavily in debt having borrowed what I have so far. I was told I didn't qualify for legal aid due to the equity I have in my wife and I's former home. I cut my working week down from 35 to 16 hours whilst we were still together to help my wife who was struggling with the strain of looking after our Sons, particularly of course my oldest Son as he needs 24 hour care. I now can't get my hours increased by my work due to lack of shifts being required. I had to give up all my work related benefits due to no longer being able to live in my marital home and having had my contact with my kids stopped unilaterally by her for no reason. She, despite having more income coming in and not qualifying automatically through her benefits has applied for and been granted full legal aid. I submitted my objections to the legal aid board as to the merits of her case but she still got it anyway. I was told categorically by 2 different solicitors I didn't qualify but have been told by the legal aid board I probably would. I have 7 hours with Both my Son's together and 27 hours with my youngest Son now until at least July. I have equal parental rights in theory but it certainly doesn't feel remotely that way just now
Expert:  JGM replied 4 months ago.

Thank you for examining that. I am now is no doubt that you need a change of lawyer. Equity in the family home would only be taken into account for legal aid if it can actually be realised into cash.

Customer: replied 4 months ago.
I was thinking the same to be honest. I don't suppose you have any suggestions do you?
Expert:  JGM replied 4 months ago.

We're not allowed to make recommendations. However you can call the law society. Better still on their website there is a find a solicitor function and you can find a family law specialist in your area. See