In many cases, where the courts are asked to decide how the assets of spouses should be distributed upon divorce, the Final Order made within the proceedings contains a Property Adjustment Order. Family Law specialist, Curtis Wray explains what happens if the other party refuses to co-operate.
A Property Adjustment Order is an order changing or clarifying the legal and beneficial ownership of property or making provision for the sale of property. Often, these types of orders are made in conjunction with a Lump Sum Order, or in consideration of some other order being made, or some other right or interest being offset.
In Financial Remedy proceedings, it is common for there to be a Property Adjustment Order transferring the marital home from the parties’ joint names into one spouse’s sole name where a sale of the marital home is avoided.
The spouse giving up their interest in the marital home may receive a lump sum in consideration of relinquishing their interest in the property or may retain some other financial asset.
But, what do you do if the other party to the proceedings is refusing to transfer the property in accordance with a Court Order following the Final Order being made?
A transfer of property is performed through a document known as a transfer deed (or TR1) being signed by the individuals involved in the transfer of the property and then being lodged at Her Majesty’s Land Registry. Upon receipt of the transfer deed, HM Land Registry will then amend the property’s title to reflect the change in ownership.
Where the property to be transferred is charged by way of a mortgage, it is likely that the mortgage provider will have to consent to the transfer. This is not usually a problem where a new mortgage can be obtained by the spouse who is to retain the property. However, the new mortgage offer is likely to be subject to a time limit. As such, if the transfer is being delayed there is the possibility of a mortgage offer expiring.
If, for one reason or another, an individual is refusing to sign a transfer deed where the Court has made a Property Adjustment Order, the Court can step in to assist. Under Section 39 of the Senior Courts Act 1981, the Court has the power execute the transfer deed and the deed will then be treated as if it has been signed by the appropriate individual.
Unfortunately, it is likely that a further Court application will be required and as such, it is imperative that legal advice is sought as soon as possible so that appropriate action can be taken. These applications can be made swiftly and a Court may order that the delaying party has to pay the applicant’s legal costs if the delaying party has acted unreasonably.
If you are having difficulty in implementing the terms of a Final Order do not hesitate to contact a member of our Family Law team based in Canterbury, Ashford and Herne Bay.
