I wonder if you could help me with a situation that has come to light. Twenty years ago, I divorced my husband who was during the proceedings declared bankrupt.
The divorce dragged on for quite some time and during that time my husband made no effort to pay the mortgage on the marital home, which I had already left with my three children.
I moved into rented accommodation, which my husband was paying for. Eventually I met someone and left the accommodation and moved in with a new partner. Eventually I secured a mortgage on a house of my own.
Can I claim now? My ex’s second wife is getting a divorce settlement but my children and I never got anything
The thing that angers me is that I never received any form of settlement from that divorce. However, I have recently discovered that my ex-husband now owns a property with his new wife.
The house appears to be in his name as I have learned they are getting divorced and she is to receive a settlement.
Is there any way I can make a claim for the settlement that I never had?
I have brought up my children from our marriage single-handed all those years with no assistance financially or otherwise and can’t help but feel this is unfair. Is there anything at all that I can do?
Tanya Jefferies, of This is Money, replies: You still have paths open to you, but they depend on what was agreed at the time of your divorce.
We asked a lawyer to explain what you could do under various scenarios, to help you work out whether it is worth seeking legal advice to pursue this now.
Philip Way, partner at law firm Mills & Reeve, replies: The options open to you depend on whether a court order was made in your divorce proceedings which dealt with your financial relationship with your former husband – a financial remedy order.
Philip Way: If you pursue a case, ask the court to hear your claims and those of your husband’s second wife at the same time
If an FRO was made, you should consider its terms carefully and take legal advice to decide whether you can enforce any orders made in your favour and whether it would be worth incurring the costs of doing so.
Amongst the orders that might have been made are:
1. An order for maintenance;
2. An order for your husband to pay a capital lump sum to you;
3. An order for you to receive a share of the proceeds of sale of the family home;
4. An order relating to pensions.
If an FRO was made in your divorce proceedings, your husband’s bankruptcy would not cancel either any arrears of maintenance or any lump sum payment.
However, you should be aware that it is difficult to recover maintenance arrears which are more than 12 months old.
If you have re-married, your entitlement to maintenance would have come to an end. Any claim for interest on a capital lump sum would be limited to six years from when the sum owed was due.
The position in relation to the family home is more complex. Depending on how the home had been owned, any equity may have been lost in the bankruptcy proceedings.
Pension attachment orders and pension sharing orders
A pension attachment order is where a court decides that a percentage of someone’s future pension income and retirement lump sum must be paid to their ex-spouse, writes This is Money.
But these orders only take effect when the pension holder reaches their scheme’s retirement age, which might be years after their divorce.
Courts now prefer to use pension sharing orders, which were introduced later and split a pension straight away on a ‘clean break’ basis.
Each ex-spouse walks away with a share of the pension, which they control themselves from then onwards.
This is Money’s pensions columnist, Steve Webb, explains in more detail here.
It is possible that a pension attachment order would have been made in your favour.
It seems less likely that a pension sharing order would have been made in your favour since these are only available on divorce petitions issued on or after 1 December 2000 and you refer to having been divorced 20 years ago.
You would need to take specialist legal advice on the effect of your former husband’s bankruptcy on any pension order made in your favour.
If there was no FRO made in your divorce proceedings and you have not remarried, it would be possible for you to make an application to the court for an FRO now against your former husband.
Even if you have remarried, you could make an application for a pension sharing order if your original petition was dated on or after 1 December 2000.
Before applying to the court, you would have to discuss with a mediator whether it would be possible to reach agreement with your former husband in mediation.
This could provide a rapid and cost-effective solution to the issues.
If you did not feel that mediation was a sensible route or your former husband was not prepared to mediate, your application to the court for an FRO would trigger a timetable taking you through the following steps:
1. You would each have to provide details of your respective financial circumstances;
2. There would be a series of up to three court hearings during which hopefully you would reach an acceptable agreement but, if not, at the end of the third hearing a judge would decide on the terms of a settlement for you.
When deciding the terms of an FRO, judges have a wide discretion to enable them to take into account the particular facts of each case.
In your situation, the court will want to know why you have not pursued your financial claims for 20 years.
How to split pensions in a divorce fairly when you’re ‘not fabulously wealthy’
Top lawyers have published a guide to dividing pensions fairly in a divorce. Read more here.
Equally, the court is likely to be interested in the fact that you brought up the children of your marriage without support of any nature from your former husband.
If the court is minded to award a settlement to you, the crucial considerations will be whether you have a need for funds and whether your former husband has the ability to meet that need.
If you are to pursue a case, it would be worth considering asking the court to hear your claims and those of your husband’s second wife at the same time.