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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10647
Experience:  I have been practising for 30 years.
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My daughter has split from her husband but is struggling to

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My daughter has split from her husband but is struggling to stay under the same roof as her husband. If she leaves the matromonial home and rents a place will she be responsible for half the mortgage? If yes, can she contact the building society to alert them to the fact that she is unable to pay and force a sale?

Hello - how long were they married and together before that? and children?

Customer: replied 9 months ago.
20 years married, 2 years before, one child 11 y.o.

Thank you. She is not responsible within the marriage finances of a property that she does not live in although she remains liable to the lender if the husband stays in the property and doesn’t pay the mortgage. She would then have the right to recoup any mortgage payments she has made whilst he is living in the property.

If they both move out, then they should both pay 50% of the mortgage.

There is nothing to stop her telling the lender that she has moved out and that while she accepts that she remains liable for the mortgage, she will not be making any contributions and any mortgage payments must come from her husband who remains resident in the property.

Forcing a sale in that way is certainly not a recommended course of action. By the time the lender’s legal costs and arrears charges have been taken out, it’s likely that it will gobble up a huge chunk of the equity in the property if not all of it or even more, leaving it in negative equity.

The fact that she has moved out makes no difference to her financial claim nor does his conduct make any difference unless she has suffered any loss as a result of his conduct such as, for example, if he gambled all the marital money away.

My advice in circumstances like this would always be to advise her to remain the property.

I don’t know why she is struggling to stay under the same roof as her husband but if she has care of the child, and there has been domestic violence, she can get a Non-Molestation Order to stop him coming within 100 m of her and an occupation order for her to live in the house in order to look after the child and for him to move out. If there has been domestic violence, she may get legal aid depending on her financial circumstances.

If she is adamant that she wants to move out or there has been no domestic violence, and assuming that the child is going to live with her, as part of the divorce proceedings, she can apply to court for an Order for Sale which is a court order to make him sell the house and to make him cooperate with the sale.

.Can I clarify anything else for you?

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Best wishes.


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