Dear Mrs Macaulay,
I have been married for five years, and my husband and I have a three year old child. At the beginning of the marriage we bought a house, in joint tenancy, with a mortgage. The full payment for the mortgage is deducted from my salary as he is self-employed, and he reimburses me his half at the end of the month. My marriage has broken down, to the point where I believe it's irretrievable. I want a divorce; however, I feel trapped in the house, and in this life, because of the mortgage. We have been living separate lives for over a year, but we both are unwilling to move because we have the mortgage which ties us to the property. I also cannot afford to move when I'm paying the mortgage. What is the easiest way to extricate myself from this responsibility, get a divorce, get out of the mortgage and move on with my life? I don't mind giving up my portion of the house, as I hate the responsibility and hate the area it's in — I just don't want to ruin my credit.
It is unfortunate that your marriage has broken down irretrievably which is causing you to have concerns about the future for yourself and your child. These situations cause great disruptions in the lives of all those concerned in every way.
You seem to know and understand that merely walking away will not free you of the responsibility for the mortgage payments and that doing so will only add to the mortgage debt in the end, if your husband does not take on the obligation to pay the whole monthly instalments each month. You would still be liable for your share or the whole mortgage debt depending on how he behaves and what he does, if you walk away. This therefore is not the way to deal with your situation, which is not unusual at all. Many couples whose marriages and common-law unions have irretrievably broken down have had to extricate themselves from mortgage obligations and with some financial benefit to each party depending on the equity which had been obtained from the mortgage payments made to the time you divest yourselves of your interests in the property.
So what should you do? I suggest that you and your husband have a discussion about the practical matters which you both must deal with in order to cut the ties between you with the least trouble, upset and cost to each of you. You both should agree to put the property up for sale together as a couple with instructions to your lawyer that on the completion of the sale, having paid the mortgage institution the full sum due to it, and the deduction of the lawyer's fees, that the balance is shared equally between you. This is the way you can both ensure that your legal costs are the lowest as you will be dividing the single lawyer's fee between you both.
If you do not agree to act together to sell the property or he refuses to agree to the sale, then you should ask him to buy your share or that you buy him out. If this is not agreed, or is not possible, then you would have to make application to the court for a declaration of your equal one-half interest, and for orders for the sale of it; that either party can buy the other's interest out; and failing this that it be sold in the open market, and that the net proceeds be equally divided between you both by your lawyer who will have carriage of the sale.
You see, if you have to go this route, it means that each of you must have your own lawyer to act separately for you. You would be the claimant and your husband would be the defendant in the application to the court, which will not only be more expensive to achieve the simple matter of the sale and division of the net proceeds of the property, but will take a much longer time than the agreement to sell which I have suggested you try to achieve.
I really urge you both to try to work out the disengagement of your marriage ties by agreement calmly and practicably. In my long experience, by not doing so, couples always cause themselves more emotional distress and financial and other stresses by not being practical and busineslike about sorting out all their affairs.
You must also agree about the arrangements for your child, whether you would have joint custody with care and control of the child to you, and access to your husband, so you would be responsible for day to day care of the child. You should also arrange for the child's maintenance.
The law provides that both parents are responsible for the provision necessary for the child's development, and since you both are gainfully employed, this should not be a problem for you to divide the obligation equally.
If you both cannot agree about the arrangements for your child, you can go to the Family Court of your parish and apply for custody, care and control with reasonable access to the father, and for maintenance of the child.
Or, since you wish to apply for a divorce, you can deal with all the matters concerning your child then. This will however be more expensive as it would be in the Supreme Court. If you get your necessary orders in the Family Court, which is free, then in your divorce proceedings you will exhibit a certified copy or copies of the orders of the Family Court about the arrangements for your child and ask for the judge to certify that they are the best that can be made in the circumstances.
I hope I have explained enough to help you decide what you can do and how you can act.
All best wishes to you all.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.