Wives Dispute Home Ownership

It is not uncommon on divorce for one ex-spouse to remain in the family home and the other to retain an interest in it after moving out. The importance of having documentation in place relating to the arrangements agreed upon in this situation is obvious, as otherwise problems can result.

Problems are especially common in the event that the ex-spouse who has retained the house remarries. Recently, the court was called upon to disentangle the position resulting from just such a circumstance after an ex-husband, who had retained the previous matrimonial home and then remarried, died intestate.

The man’s ex-wife claimed that the property belonged to her by survivorship, because she had remained on the deeds. The administrator of the estate claimed that the man’s ex-wife had agreed to dispose of her half share in the property for £10,000 in 1997 and sought what lawyers call a ruling for ‘specific performance’, which means the court ordering a person to do something they have agreed to do under contract. It was not disputed that the agreement had been made, but the ex-wife claimed that it was unenforceable. Firstly, she claimed that only £9,000 of the sum due to her was paid. The court rejected this claim on the basis of evidence presented. Secondly, she claimed that the very loose wording of the agreement meant that it was void because its terms were uncertain. It referred to obtaining the ‘agreement of the bank’ to the arrangement but no bank mortgage was in place. The judge considered that this was a reference to the building society with which the property was mortgaged and referred to the need of the ex-husband to have his former wife’s potential liability under the mortgage eliminated.

The man’s ex-wife also claimed that he had agreed to give her half the value of the house (less the £10,000 already paid) if he remarried, but no written evidence could be produced for that claim. In 2006, he had offered to pay his ex-wife £2,000 plus half the balance due on the mortgage and to obtain her release from the mortgage, in return for her signing a transfer of her interest in the property to him, but this did not take place. In the draft transfer, however, no mention was made of the £10,000 previously paid.

More telling was the fact that the agreement referred to the couple’s son as being the inheritor of his father’s estate if ‘anything should happen’ before the contract was complete. The ex-wife argued that this was instrumental in obtaining her consent to the agreement and was another reason why it was unenforceable.

Lastly, the court was concerned as to the fairness to the man’s second wife, who continued to live in the property, of the delay caused by his former wife in bringing the action to force the transfer. This, the court felt, was a sufficient reason to refuse to rule that the second wife would have to buy out the ex-wife’s half share.

The court ruled that the property was held by the first and second wives in equal shares, but that the first wife had no right of occupation, despite being entitled to a half share of the sale proceeds on a future sale.