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FMH owned in sole name. Options?

  • T W Dixon
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06 Dec 21 #518285 by T W Dixon
Topic started by T W Dixon
Where
  • a married couple is separated and getting divorced
  • the former matrimonial home is owned in the sole name of only one of them
  • there is no mortgage and
  • it is not appropriate to sell the home now
can the court order that the spouse who owns the home either
  • transfers it into the joint name of both spouses or
  • grants a charge to the other spouse?

  • WYSPECIAL
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06 Dec 21 #518288 by WYSPECIAL
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It may be in one parties name but it forms part of the matrimonial pot. The court can order the division of the pot as they see fit.

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06 Dec 21 #518294 by T W Dixon
Reply from T W Dixon
Thank you WYSPECIAL. From your reply, I understand that the court can order that the spouse who owns the home must transfer it into the joint name of both spouses. If the court chooses to, can it instead order that the spouse who owns the home must grant a charge to the other spouse?

  • .Charles
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08 Dec 21 #518315 by .Charles
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The Court is unlikely to make an order that the title be transferred into both names as it serves no purpose. It is the beneficial entitlement which matters.

If a financial order is made - agreed or otherwise - that the absent party has an interest in the property it is possible to grant a legal Charge which could specify an amount or a percentage or a combination of these. The Charge has to be correct though and there are pitfalls if it's done incorrectly.

Charles

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08 Dec 21 #518322 by T W Dixon
Reply from T W Dixon
Thank you Charles. Your reply is very helpful and makes sense to me.

In Part II of the Matrimonial Causes Act, I cannot find the power to order a home-owner to grant a legal charge to their spouse. Where is it?

  • hadenoughnow
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13 Dec 21 #518361 by hadenoughnow
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It is not about granting a charge; such a charge would be ordered by the court. The order would be legally enforceable. There would normally be a clear trigger point for sale/repayment of the charge.

Such an arrangement is called a deferred charge or Mesher order (based on case law).

Hadenoughnow

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16 Dec 21 #518411 by T W Dixon
Reply from T W Dixon
Thank you hadenoughnow.

I would like to see the wording of an actual example of a court order. Is there one that I can see, please?

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