Advice: If my wife and I separate, will I lose my home?

Q: My wife and I are considering separating and our house is solely in my wife’s name. What are my rights if we separate?

A: Under the Matrimonial Causes (NI) Order 1978 both spouses in a marriage have a right to live in the matrimonial home.

As your wife is sole owner of the home, her right of occupation is secure. However you have rights to live in the home during the marriage and as part of divorce proceedings may apply for a transfer of the property into your name. To make sure your wife does not sell the property before you have an opportunity to have this dealt with, you should register your rights of occupation at the Land Registry or the Registry of Deeds, depending on where the title is registered. It is important to do this quickly. Even if you actually move out when the relationship ends, you may want to move back in again later.

Neither partner can ask the other to leave unless there has been a court order, for example, in the case of violence or other conduct.

• Paying the mortgage when a marriage breaks down - If a mortgage is in joint names, both people are jointly and solely liable for the mortgage payments.

If a mortgage is in one person’s name, only that person is liable for the mortgage payments.

However, if your name is not on the mortgage and you want to stay in your home, you will need to keep up the mortgage payments. If your ex-partner is no longer making any payments, you will need to pay the full amount, otherwise the mortgage lender can start repossession proceedings. If you’re married, you have the right to make payments towards the mortgage even though you’re not liable for them. The lender must accept the payments.

• Court procedures - At the end of your marriage, the court can give you or your partner short-term rights to the home, for example:

• the right to stay in your home

• the right for you to come back home to get your things

• the right to stop your partner from coming into the home.

The court can also make long-term arrangements about housing. If there’s a disagreement about housing, the court will deal with the disagreement as part of the divorce.

If you are thinking of going to court about your housing rights after the breakdown of your marriage, you should consult a solicitor.

• Family mediation - Family mediation is a way of helping couples who are separating or divorcing to sort out disagreements and reach decisions about things like money, property and looking after the children. At the end of the mediation process the mediator will write up the proposed agreement and check that both parties understand what this would mean for them. You may wish to get legal advice from a solicitor, for example, if you want the mediated agreement to be turned into a legally binding agreement.

• Court directed family mediation - If you are involved in court proceedings, the court may refer you to mediation. You will be charged a fee to use this service.

You may be able to apply for legal aid to get financial help with the costs of family mediation. If you cannot get legal aid, you will have to pay privately for it. You should ask the mediator for a break-down of their charges as these may vary. You should ask about the options and shop around.

• Get free, confidential and independent advice from your nearest Citizens Advice – go to www.citizensadvice.org.uk/nireland or call at: Citizens Advice Newtownabbey, Dunanney Centre, Rathmullan Drive, Rathcoole, Newtownabbey, BT37 9DQ. Telephone advice is available 9am – 4pm each day on 028 9085 2271 (Lunch 1:00 - 1:30pm), email advice is available at [email protected]