XX. Division of the proceeds of sale of Former matrimonial home
The parties having agreed to the sale of the former matrimonial home and the completion date being XX YYY 2016, the proceeds of sale shall be applied as follows:
i. to discharge the mortgage (as defined) in full;
ii. in payment of the solicitors’ conveyancing costs and disbursements in connection with the sale;
iii. in payment of the estate agents’ charges;
iv. in payment of the balance as to XX.X% to the wife and the balance to the husband.
And here are the instructions: "that the funds will be held until we both agree the division or a Court decides"
They are arguing that the order is unclear and as we haven''t agreed a split and the court has not explicitly ordered them to release the funds, they will not.
Thanks Charles. The order was made well after the instructions were issued.
Is it not the case that if the solicitors act in terms of discharging other aspects of the order, that in effect there is one solicitor acting for both parties in contested proceedings. Is this appropriate?
If the order was made after the instructions, I cannot see what the problem is. Once (i)-(iii) are paid the balance is paid in accordance with (iv).
As you are the client, you should make a formal complaint and seek that the monies be released immediately in accordance with the order.
Your ex may also be a client but it is your ex who is trying to vary instructions unilaterally. The instruction is subject to agreement OR court decision. The court has made a decision therefore agreement is not required (even if the order was made by consent - the court has decided to make the order that was proposed by the parties).
In my mind as your ex is trying to change instructions, he is in the wrong and must seek representation elsewhere. Due to the connection between your ex and the firm that wouldn''t be appropriate therefore the firm should cease acting for both of you.