Sounds alot like your homework. I am no legal expert, but here
is my understanding.
1) Since you say it's a matrimonial home, Mary would have equal
rights under the Women's Charter to have an equal share in the
property. So Mary would be entitled to at least 50% of the sales
proceeds.
Rights and duties
46. (1) Upon the solemnization of marriage, the husband and the
wife shall be mutually bound to co-operate with each other in
safeguarding the interests of the union and in caring and providing
for the children.
(2) The husband and the wife shall have the right separately to
engage in any trade or profession or in social activities.
(3) The wife shall have the right to use her own surname and name
separately.
(4) The husband and the wife shall have equal rights in the running
of the matrimonial household.
Mary also has to ascertain if there is still equity value (positive
value after sale and repayment to banks). If property value hasn't
declined significantly since he applied for the mortgage, then
there should be some equity value in the property.
Does deserted mean divorce?
Questions between husband and wife as to property to be decided in
summary way
59. (1) In any question between husband and wife as to the title
to or possession of property, either party may apply by summons or
otherwise in a summary way to any Judge of the High Court, and the
Judge may make such order with respect to the property in dispute
and as to the costs of and consequent on the application as he
thinks fit, or may direct the application to stand over, and any
inquiry touching the matters in question to be made in such manner
as he thinks fit.
[16/93]
(2) Any order made under this section shall be subject to appeal in
the same way as an order made by the same Judge in an action
pending in the High Court.
(3) The Judge may, if either party so requires, hear any such
application in his chambers.
(4) An application may be made under this section by either of the
parties to a marriage notwithstanding that their marriage has been
dissolved or annulled so long as the application is made within the
period of 3 years beginning with the date on which the marriage was
dissolved or annulled.
(5) References in this section to a husband or a wife shall be
construed accordingly.
If there is no application for dissolution, then I doubt she can
make any claims.
Just my speculation here.
If Mary is able to prove that she is the legal tenant in the
property (paying rent in terms of Landlord and Tenant), she might
still retain the right to live in the property for a certain
duration.
Ward v. Warnke [1990] 22 HLR
496
The plaintiff's daughter and her husband occupied a holiday cottage
belonging to the plaintiff. They paid outgoings and a small sum of
£3 per week which later rose to £6 per week. The daughter left but
her husband and child remained there. It was held that the husband
was a tenant as the premises were let for a term at a rent and the
family relationship did not prevent this.
