Question
My former husband and I divorced in 2005. We had two children together and at the time of our divorce they were aged 15 and 13. When we divorced, my husband transferred our former matrimonial home to my sole name on the understanding that I would be responsible for payment of the mortgage.
My former husband has now told me that my property must be sold and he wants half of the proceeds of the sale. I had understood that when we were divorced and he transferred the property to me that this would be in final settlement, although we did not record this in writing. The property is now worth £200,000 and is mortgage free. My former husband has told me that if I do not agree to sell the property and give him half of the proceeds of the sale then he will issue an application to the court. Can he do this?
Answer
Yes, there is nothing to prevent a former spouse in these circumstances from issuing court proceedings to force a sale of the property and seek a share of the proceeds of sale. When a couple divorces, unless they enter into an order of the court recording a financial settlement, all potential financial claims between them arising from their marriage remain live.
This means that, even many years after their divorce, former spouses can seek to make financial claims against each other. The court would then consider the financial circumstances of the former spouses and make an order dividing their property, savings and investments, including pensions.
It is only possible to avoid this situation by entering into a financial order at the time of divorce. If an order is made following agreement between the divorcing couple then it is referred to as a Consent Order. If the divorcing couple cannot agree and financial proceedings are issued then the court will make a decision as to how their assets should be divided and a final Order will be made.
If an Order is not made then all potential financial claims arising from a divorcing couple’s marriage will remain live. This would also mean that, in certain circumstances, claims can be made against the estate of the former spouse when they pass away.
It is therefore crucial to enter into a financial order at the time of a divorce. Without this protection, potential claims can be made by a former spouse even many years after divorce.
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