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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 17181
Experience:  I have been practising for 30 years.
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I am considering separation but am worried I will have to

Customer Question

i am considering separation but am worried I will have to move out of our marital home.
JA: What steps have you taken? Have you filed any papers in family court?
Customer: I havent done anything yet.
JA: Family Court normally sits in a local County and Magistrates' Court. Do you know the location of the court? If not, what county do you live in?
Customer: county Antrim
JA: Anything else you want the Lawyer to know before I connect you?
Customer: im worried about financial side , how can i afford a house etc. Access to my child
Submitted: 5 days ago.
Category: Law
Expert:  F E Smith replied 5 days ago.

Welcome to Just Answer.

I will be happy to assist with your question today. I need some time to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

can you give me some background -

how long have you been together and married in total?

and who's name on mortgage? who pays?

how old is the child?

Customer: replied 5 days ago.
We have been married for 7 years, together 3 years previous to marriage. My husband owned the house before we got together. His name is ***** ***** mortgage and he pays the mortgage. Our daughter is 4 years old. Can he ask me to move out? Can he sell the house without my agreement?
Expert:  F E Smith replied 5 days ago.

I have just noticed that you are in Northern Ireland and although the provisions are the same on the mainland, the process is different in Northern Ireland.

You need to place a charge against the property which will stop him selling or remortgaging it without coming to a deal with you.

This is the relevant legislation:

Unfortunately, it’s not really a do-it-yourself job unlike the mainland where we have a standard form to submit. A Boy Scout could do it over here.

For that, you are going to need to see a solicitor I’m afraid.

With regard to you running the property if he is no longer in it, Unless a sale of the house produces enough money for the parent looking after the child(ren), the resident parent, until the youngest reaches 18 and produces a surplus for the non-resident parent, the sale of the house is not on the cards until the youngest child reaches 18.

Both parents are under a duty to provide a home for dependent children until they reach 18. Only then would the house be sold.

You have a four year old daughter and if you are going to be the main carer of the child, there is a good possibility that you could hang onto the house for another 14 years before it gets sold although you would be responsible for the bills in the interim.

A person is not responsible for the mortgage or rent or the bills of a house that they do not live in although they remain liable to the lender or landlord if the other person stays in the property and doesn’t pay the mortgage or rent.

In that case, the non-occupier would be entitled to recover any mortgage or rental payments made by the non-occupier, from the occupier within the finances of the breakup of the relationship/marriage.

It doesn’t matter whether the house is in his name or your name or joint names, your financial interest is the same. My advice to you, the same as the advice to any person in your situation is don’t move out. It doesn’t affect your financial status but it does mean that you lose a large element of control.

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

I would be more than happy to clarify anything else for you. In the meantime, thank you once again for using our services.

I am happy to answer any specific points arising from this.

Please be aware that my answer is based strictly upon the information you have given me.

If you still need any points clarifying, I will be happy to reply because the thread does not close. In fact, it remains open indefinitely.

I am always happy to answer any further questions you have on any new thread in which case, please start your question with, “ For FES only”.

You don’t need to do it on this thread, just a new thread. You have me exclusively on this one.

Thank you.

Best wishes.


Customer: replied 5 days ago.
What would happen if non of us move out of the property?
Customer: replied 5 days ago.
we will both want to be the main carer of the child. So who decides who the main carer is?
Customer: replied 5 days ago.
You mentioned that If I were to to remain in the house I would be responsible for the bills. I would not be able to manage all the bills myself as we have a large mortgage. Would he have to offer financial support?
Expert:  F E Smith replied 5 days ago.

If neither of you move out of the property, which isn’t going to happen unless there is an allegation of domestic violence, then it would have to wait until there is a court order in respect of the marital finances to decide who has what and who lives where.

The courts believe that both children should grow up knowing both parents equally although my personal view is that living between two houses does not give a child a stable base. However that’s not the way the court looks at it.

What the court would do is look at who has been the main carer of the child until now and continue with that. The courts don’t normally upset the status quo.

If residence (used to be called custody) is 50-50, then no child maintenance is payable.

As well as child maintenance at the CMS rates

There is a possibility of a liability for spousal maintenance, maintenance paid to keep a spouse , as opposed to children. Although most commonly paid from husband to wife, that is not necessarily the case. Spousal maintenance is based on both incomes, ability to earn money, previous lifestyles and most importantly, need. It is not about equalising incomes. There is no exact formula, but these links will give some reading..



And here is an interesting and informative article with regard to the division of finances in general (don't worry about it no longer being updated)

And finally, here is an article what happens to inheritance in the event of a


You would not be the first person that struggled financially after splitting up. Sorry to be the bearer of that bad news.