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Matrimonial Home: What Are My Rights?

By: Lorna Elliott LLB (hons), Barrister - Updated: 12 Jun 2017 |
 
Marriage Divorce Maintenance Payment

Q.

My wife has told me she wants to separate after 5 years of marriage and move into rented accommodation. When I met her she moved into my house and not long after started maternity leave. Sadly, our son was born with a disability and she therefore hasn't worked since he was born. She receives approx £500 per month carer's allowance plus other usual benefits.

The matrimonial home is in my sole name and I have therefore paid the mortgage, bills and generally maintained the property in good order. I'm devastated she has made this decision but now need to know where I stand legally regarding the house and spousal maintenance.

Obviously, I have no issues whatsoever with regard to maintenance for my child, and am more than happy to pay this and still want to be a part of his life.

Any advice please.

(JB, 13 April 2010)

A.

I am sorry to hear that your wife has decided that your marriage is over. I note what you say about the fact that the property (which lawyers call the FMH or Former Matrimonial Home) is and always has been in your sole name. This does not necessarily mean that your wife would not have a claim to some share in the equity in the property. While it is right that your wife has not contributed financially to the property, she has managed the household for the time that you have been married and, most importantly, brought up your disabled son. The law recognises in marriage and other partnerships that while one person might be the breadwinner the other spouse contributes to the marriage in other non-financial ways.

Maintenance Payments

While you mention that your wife is currently in receipt of carer's allowance and other benefits, you do not mention whether you are paying her anything by way of maintenance at the moment. Although recent events will have been understandably upsetting for you, it does sound as though you and your wife are reasonably amicable about your separation. If you can both agree on terms for Maintenance Payments for your son, and any other financial arrangements, you and your wife may have a relatively straightforward divorce.

The Law

Of course, you should be aware that your wife may go to a solicitor at any time and be advised independently as to her legal options. I do not know your financial circumstances but her lawyer may advise her that she is entitled to a share of the equity in the family home. At this point you may want to consider your own circumstances. Would you be in a position to offer her a lump sum? Have you and your wife talked at all about making provision for your son or any maintenance payments for your wife? Would you be prepared to make any kind of offer?

Your Wife’s Rights to the Property

Similarly, your wife could register an interest in the property at the Land Registry, which would mean you could not take a secured loan against or sell your home without her permission. This is quite commonplace in situations in which the marital home is in one person’s name only.

I’ve tried to outline basic principles here, but my advice to you is to go and see a family solicitor asap. You don’t need to tell your wife that you’re consulting a lawyer, but could just find out what your options are at this stage. Good luck.

Check out our expert's answer to when an ex changes the locks on a jointly owned property.

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My partner after 6 years of court and solicitors finally obtained his divorce from his wife in 2009. He son was 13 at the time. He wanted nothing from the house and it was signed over to her with a condition she would use her 'best endeavours' to remove his name from the mortgage. We are now 8 years on, the son is 21 and the former wife enjoys holidays to South Africa drives a new car and yet does not earn enough to take over the mortgage. What can we do and how can we get his name off this mortgage?
Smurf - 12-Jun-17 @ 4:29 PM
My wife and i live in rented accomadation.which she pays the rent and bills for .so i have been a stay at home dad for the last 12 years.to which now ive found out after 16 years of living there iam only down as a resident yet we have four kids together.she kicked me out two weeks ago and now it as come out she as been having an affair and started to bring the man found to the house to whichour eldest son as left the house to live with me at my mums house whichis only three bedroom.which as 6 /7 of us living here so iam just wondering what my rights are regarding the maritalhome.plus she as left me with no money what so ever. Thanks
Mufc75 - 5-Jun-17 @ 9:03 AM
I lived in a home for 15 years with my wife and contributed every month towards bills taxes and mortgage only to find out now that we are going to separate her parents company holds title of the home ..am I entitled to any share of the matrimonial home since I have proof of payments during divorce? please help
zak - 4-Jun-17 @ 5:29 AM
Sepsteve - Your Question:
After 10 years of marriage we have decided to separate. We have a 5 year old and a 10 month old baby. The Marital home is jointly owned although I have always paid all the bills and mortgage. I am keen to move on and move out but can't afford to buy unless we release equity in the house for a deposit/stamp duty. She doesn't want to sell and wants to remain in the house with the kids. She's said that she will sell within 12 months of me moving out into rented but I don't trust her. If I move into rented and continue to pay the mortgage and bills at the FMH she'll have even less incentive to agree to a sale. Is there anyway to "force" a sale by for example us both signing an agreement we've drawn up ourselves? I've said I'd accept a 30/70 split in assets and pay her maintenance in order to gain what I need as a deposit. If it ended up going to court could they decide that she should stay seeing as it's best for the kids and I can afford rented and pay her living costs? Or would they agree with me that it's fairer to split the equity so she can still afford somewhere suitable and I can buy a house to make a home for my kids when they see me rather than the uncertainty that rented property brings? I really need to move out but am loath to rent forever and need something legally binding prior to waiting for a divorce and consent order and/or separation agreeemnt

Our Response:
It may be advisable to seek some professional legal advice regarding this. If your ex is the primary carer of your children, a court would always decide what is in their best interests, which is usually to stay in the family home until they leave full-time education. However, we cannot predict what a court may decide. In an ideal world you would decide between you what happens to the house and mediation/divorce arbitration should always be considered where you cannot agree. Court is seen the last resort - but it is always the welfare of the children who are considered above all else.
SeparatedDads - 11-May-17 @ 2:31 PM
After 10 years of marriage we have decided to separate. We have a 5 year old and a 10 month old baby. The Marital home is jointly owned although I have always paid all the bills and mortgage. I am keen to move on and move out but can't afford to buy unless we release equity in the house for a deposit/stamp duty. She doesn't want to sell and wants to remain in the house with the kids. She's said that she will sell within 12 months of me moving out into rented but I don't trust her. If I move into rented and continue to pay the mortgage and bills at the FMH she'll have even less incentive to agree to a sale. Is there anyway to "force" a sale by for example us both signing an agreement we've drawn up ourselves?I've said I'd accept a 30/70 split in assets and pay her maintenance in order to gain what I need as a deposit. If it ended up going to court could they decide that she should stay seeing as it's best for the kids and I can afford rented and pay her living costs? Or would they agree with me that it's fairer to split the equity so she can still afford somewhere suitable and I can buy a house to make a home for my kids when they see me rather than the uncertainty that rented property brings? I really need to move out but am loath to rent forever and need something legally binding prior to waiting for a divorce and consent order and/or separation agreeemnt
Sepsteve - 11-May-17 @ 1:29 AM
My wife has moved out of our home after 23 years marriage , I am at home with two boys 19&16 She has to find rental property and although our mortgage is finished she needs me to support her rental cost because she doesn't earn enough money. Do I have to support her even though she has left ?
Bluenose - 8-May-17 @ 8:06 PM
Nick1042 - Your Question:
My wife has the mortgage in her name only and pays this each month, I pay all other bills to the property. A while back things got bad between us and since then we have been living at the house but the relationship is over. Recently my wife told me she cannot afford the mortgage so needs to sell the house. We have been married for 10 years and have one child. The house was bought while we were married 3 and half years ago. Would I have any entitlement to any of the proceeds of the sale of the house when we divorce? thanks

Our Response:
If you bought the house between you when married and money came from the joint marital pot, then yes you would be entitled to a percentage of the equity once the house was sold and any loan paid back. However, much also depends upon who becomes the primary carer of your child which means their financial need would be deemed as being greater. If you cannot agree a financial arrangement between you and your ex, then the alternative would be family mediation, divorce arbitration or court. All of which will cost and can quite easily suck up any equity gained. Therefore, if you can rationalise a financial deal between you regarding what you both feel is in the best interests of your child, this is always more beneficial all round.
SeparatedDads - 6-Apr-17 @ 11:46 AM
My wife has the mortgage in her name only and pays this each month, I pay all other bills to the property. A while back things got bad between us and since then we have been living at the house but the relationship is over. Recently my wife told me she cannot afford the mortgage so needs to sell the house. We have been married for 10 years and have one child. The house was bought while we were married 3 and half years ago. Would I have any entitlement to any of the proceeds of the sale of the house when we divorce? thanks
Nick1042 - 5-Apr-17 @ 6:29 PM
Della - Your Question:
My partner of 6yrs is going through a financial dispute with his ex wife, They married soon after meeting in 2004, She had lost her 2 children and all assets from her previous marriage to her ex husband so my partner supported her through the courts to regain custody of her daughters one of which took my partners name. After they married they lived in rented accommodation and had two children of their own, She decided that she wanted to live closer to her parents and have room for her daughters of the previous relationship to stay with her, so my partner bought a 3 bedroom house in 2006 near to her parents in his name only because she couldn't get credit and wasn't working and one daughter moved in. In 2007 my partner moved out due to an irretrievable breakdown in the relationship, he supported her and paid the mortgage and gave her money for his two sons and her daughter to support them. In 2008 she put in for a decree nisi and it was granted, she then put her name on the land registry and applied for social housing without my partner knowing anything about it. He continued to pay the bills and visit his sons until 2014 when he called to visit and the house had been vacated along with its contents and he subsequently found out that his keys were with the local police and she had moved to a council house.Since then he has fought to see his children but lost the case due to false allegations of domestic abuse and spent a fortune on solicitors fees etc. We partially refurbished the house so that we could move in on the advice of his then solicitor, In 2016 he applied for his decree absolute and it was granted due to the length of time since the nisi but now he has the financial agreement to sort out. The children are sorted through child maintenance so he is going to court about spousal maintenance of which she is trying to claim the house and his army pension of which he acquired while she was still at school and he was married to his first wife with his first 2 children. He has offered her a proposal of £250 per month until his sons are 21 or until she marries again then the money will go into a trust fund for the boys who are 10yrs and 11yrs now. My partner is 57yrs old and on a low wage and we struggle to pay our bills, I only work part time as I have arthritis and will be having a hip replacement very soon so will not be able to work for quite a while. we have proved all of her allegations to be false and contradictory but we are worried that we could lose his house. Please advise us

Our Response:
Even though there is plenty of detail contained in your question, we cannot advise due to the complexity of the issues. If the house was purchased while married and your partner had children with his ex wife, then she will have a claim on the finances and house. However, if an agreement cannot be reached between them, then it will be reached either through divorce arbitration or court. Therefore, your partner's only recourse would be to seek legal advice. The fact your partner has not seen his children is a completely separate issue to any financial one and he would have to apply for a C100 contact order, if his ex is refusing to negotiate.
SeparatedDads - 29-Mar-17 @ 12:10 PM
My partner of 6yrs is going through a financial dispute with his ex wife, They married soon after meeting in 2004, She had lost her 2 children and all assets from her previous marriage to her ex husband so my partner supported her through the courts to regain custody of her daughters one of which took my partners name.. After they married they lived in rented accommodation and had two children of their own, She decided that she wanted to live closer to her parents and have room for her daughters of the previous relationship to stay with her, so my partner boughta 3 bedroom house in 2006 near to her parents in his name only because she couldn't get credit and wasn't working and one daughter moved in. In 2007 my partner moved out due to an irretrievable breakdown in the relationship, he supported her and paid the mortgage and gave her money for his two sons and her daughter to support them. In 2008 she put in for a decree nisi and it was granted, she then put her name on the land registry and applied for social housing without my partner knowing anything about it.. He continued to pay the bills and visit his sons until 2014 when he called to visit and the house had been vacated along with its contents and he subsequently found out that his keys were with the local police and she had moved to a council house..Since then he has fought to see his children but lost the case due to false allegations of domestic abuse and spent a fortune on solicitors fees etc. We partially refurbished the house so that we could move in on the advice of his then solicitor, In 2016 he applied for his decree absolute and it was granted due to the length of time since the nisi but now he has the financial agreement to sort out. The children are sorted through child maintenance so he is going to court about spousal maintenance of which she is trying to claim the house and his army pension of which he acquired while she was still at school and he was married to his first wife with his first 2 children. He has offered her a proposal of £250 per month until his sons are 21 or until she marries again then the money will go into a trust fund for the boys who are 10yrs and 11yrs now.. My partner is 57yrs old and on a low wage and we struggle to pay our bills, I only work part time as I have arthritis and will be having a hip replacement very soon so will not be able to work for quite a while.. we have proved all of her allegations to be false and contradictory but we are worried that we could lose his house.. Please advise us
Della - 28-Mar-17 @ 7:00 PM
fanny - Your Question:
I am married with 3 kids and left my husband 5 months ago due mental abuse ,we lived in a house that my husbands parent bought about 15years ago for us to live in we paid the morgage for them ,would I be intitled to any more from the them they are selling the house

Our Response:
Please see CAB link here. However, if the house is owned by your partner's parents and not your partner, then it is unlikley you would be able to register an interest in the house. If the house is in your partner's name, then you may be able to.
SeparatedDads - 20-Mar-17 @ 2:32 PM
i am married with 3 kids and left my husband 5 months ago due mental abuse ,we lived in a house that my husbands parent bought about 15years ago for us to live in we paid the morgage for them ,would i be intitled to any more from the them they are selling the house
fanny - 18-Mar-17 @ 4:16 PM
Cathy - Your Question:
My husband and I have been married for a year but been together for 6. We are living in a house he bought when we started dating and now we want to move out and buy another house. He wants to transfer the current mortgage and put all the proceeds from sell into the new house. The bank refuses to have my name on the deed of the new house, so the house will be on his solely name (he will continue to pay the mortgage payments as always been). We have no kids but we will like to have children in a couple of years. Would I have any rights in the future to the house in case of divorce? Thankx

Our Response:
Yes, if you are married and have children, regardless of whose name the house is registered in, you would have a marital claim. In the first instance, the house would be considered a non-marital asset which will favour your husband. However, the level of your own entitlement will be based upon the length of the marriage (the longer the marriage, the more claim you will have), and whether you have children etc.
SeparatedDads - 8-Mar-17 @ 1:57 PM
My husband and I have been married for a year but been together for 6. We are living in a house he bought when we started dating and now we want to move out and buy another house. He wants to transfer the current mortgage and put all the proceeds from sell into the new house. The bank refuses to have my name on the deed of the new house, so the house will be on his solely name (he will continue to pay the mortgage payments as always been). We have no kids but we will like to have children in a couple of years. Would I have any rights in the future to the house in case of divorce? Thankx
Cathy - 7-Mar-17 @ 8:08 PM
rud - Your Question:
I own my property, I had a previous relationship within it, and had 2 children with my first partner, we split up after 12 years and she moved out with my children to another property, but I have access to them whenever I like, and they always come to the house to stay, I paid her off and carried on living in the home paying the mortgage and bills, after 2 years I met my new girlfriend and we got married, she has 5 children with her ex husband, we are now married and I still live at my property and she still lives at hers, if I was to move her and my 5 step children into my home, what would happen if we ever split, where would I stand legally? would I have to move out? and would she have rights to the house? where would I sit financially.

Our Response:
This is a tricky question to answer as in one respect your house may be considered a non-marital asset and therefore in theory you would still own it if you and your current wife separated. However, the longer your marriage the longer your wife will have a claim on your house. Plus, you don't say whether she owns her house or not, which will also be taken into consideration if you split. In addition, you don't say whether you plan to have children. If you do, and you decide to split up and your wife is the primary carer of your child, then it is likely the court would allow your wife to remain in your house until your youngest child reaches 18 (in which case you would have to move out). Therefore, I'm afraid there no straightforward answer to this question because of the variables that may arise.
SeparatedDads - 2-Mar-17 @ 1:01 PM
I own my property, I had a previous relationship within it, and had 2 children with my first partner, we split up after 12 years and she moved out with my children to another property, but I have access to them whenever I like, and they always come to the house to stay, I paid her off and carried on living in the home paying the mortgage and bills, after 2 years I met my new girlfriend and we got married, she has 5 childrenwith her ex husband, we are now married and I still live at my property and she still lives at hers, if I was to move her and my 5 step children into my home, what would happen if we ever split, where would I stand legally? would I have to move out? and would she have rights to the house? where would I sit financially.
rud - 1-Mar-17 @ 3:18 PM
my walked off our marriage for her new friends and now she wants a divorce after 16yrs we got 3 kids and the people shes with tell how to go about everything how torment me wot can I do to save my marriage and those friends she have
shakes - 17-Feb-17 @ 10:01 AM
My ex wife and I divorced 7 years ago. I left the matrimonial home and agreed to pay maintenance until the child was 18. The 7 years has now passed and the ex wife is refusing to leave the property. She is also not paying the mortgage which is in joint names. She is refusing me access to obtain a valuation of the property so value of assets can be established. What can I do?
RM - 20-Jan-17 @ 5:55 PM
Milly- Your Question:
My husband of 11 years 6 months lives n works back in my Africa, my country. I've never registered him here as my husband so is it going to be hard for him to come n visit me here?

Our Response:
He can apply to visit you via a standard visitors visa, please see link here. I can't predict whether he would be allowed in the country or not - all will depend on whether he fulfils the specified requirements.
SeparatedDads - 20-Jan-17 @ 1:41 PM
My husband of 11 years 6 months lives n works back in my Africa, my country. I've never registered him here as my husband so is it going to be hard for him to come n visit me here?
Milly - 19-Jan-17 @ 8:40 PM
In September 2014 my wife divorced me. The settlement was basically she could have the house and I would not have to pay maintainance and on the understanding she would contunue to provide a roof over our then 17 and 12 year old children. Once the divorce camw through she sold the house and put the proceeds towards a flat which she rented out whilst she lived, illegally in substandard rent free accomodation. Within months if the divorce she kicked my 17 year old out. More recently the local council evicted her and my now 15 year old daughter due to it being an illegal residence. My ex then movee in with her new partner and has kicked my 15 year old out. I recently remarried, i have a stepson aged six and my daughter is now living with us. I would really appreciate some advice regarding my rights, does she have to pay me maintainance and is there anything i can do in terms of the divorce agreement as ut seems wholly unfair!!
Iancs - 23-Dec-16 @ 1:18 PM
okpe - Your Question:
Hi my ex and I married for 10 years and we both have 2 children.First property was in his sole name , property no 2 was both names were we both lived untill he decicded to move out and I ended paying for the mortage ,service charge and repairs for 10 years.3rd property was in his sole name. My ex pays for child maintanance and property no 2 has been sold and money share between us.Am I entitle to his other two properties since both properties are on his sole name?

Our Response:
You would have to seek legal advice as much depends upon how long you were married for and whether you have children. You may certainly be entitled to a share of his latter property, (if you were still married at the time he bought it and joint funds were used to pay for it). The first property may be considered as a pre-marital asset.
SeparatedDads - 19-Dec-16 @ 12:37 PM
hi my ex and I married for 10 years and we both have 2 children.First property was in his sole name , property no 2 was both names were we both lived untill he decicded tomove out and I ended paying for the mortage ,service charge and repairs for 10 years.3rd property was in his sole name. My ex pays for child maintanance and property no 2 has been sold and money share between us.Am I entitle to his other two properties since both properties are on his sole name?
okpe - 18-Dec-16 @ 11:16 AM
A week aftermy Wife asked for a divorce she made false allegations to the police of domestic violence and I was removed from the marital home and not allowed to contact or talk with her. During the 5 months I was on bail I kept up contact with my children and eventually managed to rent a home for them to stay with me. During all this time I paid the morgage and the bulk of the household bills, slowly tapering them down to the point where I now only pay the morgage. The Police found no wrong doing and no charges were layed, the Social Services also investigated and found my Wife to be somewhat sparing withtthe truth and downright lieing on several occasions Financially I now cannot maintain the morgage on the marital home and the rent and bills on the property I now rent and have the children at 50% of the time. There is no option of moving back into the house after the allegations and the fact she has changed the locks (which I believe to be illegal). Her and her solicitor are fighting a delaying action on the financials as she wants to remain in the house , which, I am not in agreeance to as I need to release equity to buy a property within which I can help raise my children on joint residency. To what level can I reduce my morgage payments? Certainly I am only liable for half the payment but as I do not live there and have been removed forcibly and now have to pay for a second property can I refuse to pay the morgage? I intend to pay child maintenance at the CSMA rate.
Andrew - 19-Nov-16 @ 1:57 PM
A week aftermy Wife asked for a divorce she made false allegations to the police of domestic violence and I was removed from the marital home and not allowed to contact or talk with her. During the 5 months I was on bail I kept up contact with my children and eventually managed to rent a home for them to stay with me. During all this time I paid the morgage and the bulk of the household bills, slowly tapering them down to the point where I now only pay the morgage. The Police found no wrong doing and no charges were layed, the Social Services also investigated and found my Wife to be somewhat sparing withtthe truth and downright lieing on several occasions Financially I now cannot maintain the morgage on the marital home and the rent and bills on the property I now rent and have the children at 50% of the time. There is no option of moving back into the house after the allegations and the fact she has changed the locks (which I believe to be illegal). Her and her solicitor are fighting a delaying action on the financials as she wants to remain in the house , which, I am not in agreeance to as I need to release equity to buy a property within which I can help raise my children on joint residency. To what level can I reduce my morgage payments? Certainly I am only liable for half the payment but as I do not live there and have been removed forcibly and now have to pay for a second property can I refuse to pay the morgage? I intend to pay child maintenance at the CSMA rate.
Andrew - 19-Nov-16 @ 1:51 PM
Does my wife who I've been separated from for 2 years and am yet to divorce from have any rights to a house I'm about to buy with my new partner
Daws - 11-Nov-16 @ 8:59 PM
Vera - Your Question:
Hi my husban of 12 years whom we have separeted for 5 years wants to come back and help me buy our family home since my credit scoring is not good. he says that he is helping me to secure a home for the 3 boys we have together but has no interest in future incase I sell it. he also says he wants to file a divorce against me since he has moved on. I have been paying for my house rent ever since and he contribute 100 pounds every month towards child upbringing not as directed by the courts.how do I make him to write that his intention is just to facilitate the mortage and no furutre claim for rights after divorce and nothing else after as I will be the one to pay the mortage and my names are the only one to be on the title deed.

Our Response:
You would have to seek legal advice about drawing up an agreement.
SeparatedDads - 10-Nov-16 @ 3:03 PM
Moh - Your Question:
Hi in 2008 me and my ex wife bought a house with tenants living in it with both our names. The purpose was to move into it after we divide it into two flats.her father helped us to buy it by paying the first payment as a gift for his daughter and also because I was working for him at the time ,when we started to pay the mortgage she insisted on paying the mortgage from her bank account and she told me to pay for shopping and bills and we agreed on that.later she decided that she doesn't want to leave her parents house as we were living there with our one year old child and changed her mind about deviding the house so problems started and we decided to divorce so I moved out and that was the cause of me getting into a severe depression for one year. Since then I've been trying to have my life back as she was in control of all paperwork.I have paperwork to say that the house in both our names and I pay her maintenance for my son every month but she keep saying that I have no right over the house because I didn't contribute towards it "according to her" my question is can I claim my share of the the house?? As she has never lived in it since we bought it??

Our Response:
If you purchased the house together and you are married, then you do have rights as the house was not a pre-matrimonial asset i.e owned by your wife prior to the marriage. Regardless of who works, or who stays at home or what money each spouse earns, when you are married, it is all considered as part of the joint marital pot. Had your ex lived in the house, or if she currently lives in it with your child, then the court 'may' rule to let her stay in it, as it will always decide what is in the best interests of your child (which is having a roof over his/her head). Therefore, I suggest you seek legal advice in order to explore your options.
SeparatedDads - 10-Nov-16 @ 1:47 PM
Lj - Your Question:
Recently my parents have split.My brother and I are living with my dad and my mum has gone to live with my grandparents.She is trying to make him sell the house or buy her out. Does she have the right to do this?My brother is 17 and I am 18. We are in full time education. Next year I will be going to uni and my brother will be in an apprenticeship. Because I will be living at home for university, will she be able to make us sell the house then?

Our Response:
I am sorry to hear this. Much depends upon how much your mother wishes to pursue the matter and whether she wishes to take it to court, if your father refuses to sell. However, it is unlikely the court would move to force your father to sell whether you are both living with him and are in full-time education (up to A'Level standard). However, once your further education ends, pre-university, the court may request your father sells in order to split the equity between him and your mother.
SeparatedDads - 10-Nov-16 @ 12:57 PM
hi my husban of 12 years whom we have separeted for 5 years wants to come back and help me buy our family home since my credit scoring is not good. he says that he is helping me to secure a home for the 3 boys we have together but has no interest in future incase i sell it. he also says he wants to file a divorce against me since he has moved on . i have been paying for my house rent ever since and he contribute 100 pounds every month towards child upbringing not as directed by the courts. how do i make him to write that his intention is just to facilitate the mortage and no furutre claim for rights after divorce and nothing else after as i will be the one to pay the mortage and my names are the only one to be on the title deed.
Vera - 10-Nov-16 @ 1:41 AM
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