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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 17249
Experience:  I have been practising for 30 years.
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For FES ONLY We have agreed to divorce but we have a joint

Customer Question

We have agreed to divorce but we have a joint mortgage. I will like to sell the property but my wife wants to keep it. Can the court make a decision on whether to sell or keep the property as we have 2 children under 18 years of age. If the court decide we should keep the property, what are my rights? Can I remain in the property and continue to contribute to the expenses as I will not be able to afford my own property.
Submitted: 10 days ago.
Category: Law
Expert:  F E Smith replied 10 days ago.

Hello again.

I’m happy to continue with this.

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.

So it really depends on who is going to be the main carer of the children until they reach 18 as to who gets the house 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.

There is nothing to stop both of you staying in the property, even after divorce if you both agree.

Customer: replied 10 days ago.
Due to finances, I will not be able to move out of the house as I am still responsible to the lender for the mortgage. However, my wife does not want me to remain in the property even though I wish to remain as I can’t afford to move out as I will still be responsible for the mortgage, child maintenance and other expenses.
Expert:  F E Smith replied 10 days ago.

If you don’t want to go, then don’t go. Not until a court orders it (if it does) that is.

She cannot compel you to go, any more than you can compel her although don’t be at all surprised if she alleges domestic violence to try to get a non-molestation order to get you out. Such untrue allegations are not uncommon in circumstances like this.