Ex-wife refusing to settle on jointly-owned property

Dear Mrs Macaulay,

I am reaching out for your advice regarding a long-standing issue with a joint mortgage my ex-wife and I acquired through the National Housing Trust (NHT).

In 2011, my then wife and I purchased a home together using a joint NHT mortgage. In 2013 we separated and I migrated for approximately two years, during which I continued to contribute to the mortgage. I returned to Jamaica in 2015 when our divorce was finalised. At that point, she had already moved her new partner into the home.

We had a verbal agreement that since she was residing in the house with a partner, she would take full responsibility for both her portion of the mortgage and mine. She maintained this arrangement for several years and has since remarried.

Recently, I started receiving calls and e-mails from NHT indicating that my portion of the mortgage has not been serviced. Upon further inquiry, I learned that my loan is now in arrears by approximately $500,000, and every year, my NHT refund of over $100,000 is being applied to the loan. I have made several attempts to resolve this amicably, including proposing that one of us buys the other out. She has refused. At this point, I have no interest in the property, especially as it is occupied by her and her new husband. However, I find it unfair and financially burdensome to be told I must pay (including arrears and legal fees) just to be removed from a house I do not live in, benefit from, or want any future claim to. What legal options do I have to remove my name from the mortgage and title under these circumstances? Can I force a sale or initiate a legal process to be removed without incurring such a high financial cost? Is there any recourse available through NHT or the courts in a case where one party refuses to cooperate?

It is really unfortunate that you seem to be one of those persons who sleep on their legal rights rather than proactively take steps to protect them. Why did you wait so long to seek information about what you could do? In fact, why have you not sought to retain the services of an attorney to advise and assist you to obtain your share of the value of the premises without any loss to you? Had you acted earlier, the legal action would have been easy and smooth sailing.

If you had taken timely action in 2013 when you separated, or in 2015 when your divorce became final, you could have had your lawyer file an application under the Property (Rights of Spouses) Act, despite what your ex-wife’s position was. The Act provides in Section 6, as this was your “family home” that each spouse shall be entitled to one-half share on the happening of three events:- divorce or end of cohabitation; upon the grant of a decree of nullity; and where a husband and wife have separated and there is no likelihood of them reconciling. So, despite your ex-wife wanting to remain in the home, you could have applied to the court for a declaration of your entitlement to a one-half share of the market value of the premises, and also for an order for the property to be sold and the net proceeds divided between you and her. There could have also be an application included that either of you could buy the other’s interest.

Your claim could have also had a general inclusive request for the court to make other orders and grant such relief as necessary in the circumstances of your case. Such applications are made in the Family Court of the parish in which the premises are situated, depending on the market value being within such court’s jurisdiction; and also by filing a Fixed Date Claim Form in the Supreme Court to be heard by a judge in chambers.

Generally, applications should be made within 12 months following the divorce or the separation, unless an application is made to the court to grant the applicant a longer period for their application to be heard. You could have done this, but failed to act on two occasions.

So now we come to 2025. You must go and obtain the services of an attorney-at-law to act for you. You cannot act for yourself as in the circumstances, with the mistakes you have made, you ought not to delay and longer. You made two mistakes by not acting after your separation and divorce. But you also made the grave mistake of having a “verbal” agreement with your ex-wife about her taking over your obligation to pay your portion of the mortgage. This was a serious mistake! Agreements relating to any real property must be in writing or have a sufficient memorandum of the terms of the agreement and the description of the property it relates to. This is why it is always advisable to consult a lawyer.

You must file your claim in order to obtain an order for either you or your ex to purchase the other’s interest or sell the property on the open market, and for division of the net proceeds, as I detailed above. This cannot be done under the Property (Rights of Spouses) Act, as that ship has long sailed as it’s been over 10 years since your divorce. You should be able to successfully claim the total debt which NHT is claiming that you owe, by seeking an order in your claim form (the process your lawyer would have to use now), that since your wife used the premises solely for herself and her partner, and kept wilfully refusing that either of you buy the other’s interest, or to sell, that she should pay the portion of your mortgage for the relevant years, as she intentionally withheld information from you that she was not making those payments and that this caused you loss because of her bad faith and intentional failure to settle the matter amicably. Your attorney should also apply for her to pay your costs.

You must waste no further time in using the law to obtain what is rightfully yours. I see no reason why you should fail as no court will reward your ex-wife’s obstructionist conduct. She cannot force you as a joint owner to continue being denied use of your property as she has done for so many years . The only impediment is you yourself, so stop dilly dallying.

All the very best.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5.