How can I enforce a sale or transfer of property in a divorce order?

If your divorce order provides for the sale or transfer of a property and the other party is failing to comply with the order you can ask the court to enforce the order.

Whilst the court can make a financial order following the making of the conditional order of divorce it cannot be enforced until the final order of divorce has been made (section 23(5) of the Matrimonial Causes Act 1973).  If you don’t yet have your final divorce order, you may be able to return the matter to the court for directions.  Most divorce orders will include a clause confirming ‘the parties shall have liberty to apply to the court concerning the implementation and timing of the terms of this order’.

Enforcing a divorce order

An enforcement application is started by filing an application notice and statement setting out what orders you are asking the court to make. The application will normally need to be made to the same court in which the original order was made. Once the court has issued the application, the court will send a notice to each party to attend a hearing. At the hearing, the parties will be questioned on their evidence and the court will decide whether to enforce the order.

You can ask the court to make one or more of the following orders:

  • Supplemental orders regarding the mechanics of sale

You can ask the court to make supplemental orders to the original order for sale or transfer dealing with the mechanics of sale of the property in the divorce order. Such as:

  • Appointing the estate agents to market the property or whether new agents should be instructed in place of existing agents and details on their instruction such as whether only the estate agents conduct viewings and are provided with keys to the property.
  • Appointing the conveyancing solicitors or whether new solicitors should be instructed in place of existing solicitors and detailing how and when their terms of business should be completed and/or within how many days after receipt of documents from the conveyancers the parties need to return documents.
  • Setting the sale price.  The court can make an order along the following lines ‘ The property shall be placed on the open market for sale immediately for a price no higher than £X and no lower than £Y as recommended by the estate agents and the property shall be sold for a price no lower than £Z.

  • Sole conduct of sale

Whilst this will allow you to make decisions regarding the marketing and sale of the property it will not give you sole conduct of the conveyancing process.  If the other party are refusing to sign conveyancing documents an application needs to be made to the court for an order that the court execute documents in place of that party under section 39 of the Senior Courts Act 1981.

  • Executing conveyancing documents: section 39(1) of the Senior Courts Act 1981

This provision gives the High Court or Family Court a specific power to order the execution of a deed or document by a nominated person (usually the judge) if the other party neglects or refuses to comply with an order requiring them to execute the document.  There must be a specific order of the relevant court to execute the document in question, not just an order for a sale of property.

  • Penal notice

Applying for a penal notice to be attached to the order for sale means that any continued breach of the order would result in the other party being in contempt of court and for which they risk being fined or imprisoned.

  • Possession

Under the Family Procedure Rules 9.24 the court may order a party to deliver up possession of land (including any interest in land or any right over land) to any person following an order for sale.

Interim orders for sale

If you do not already have a consent order or final order in place you may be able to apply for an interim order for sale. 

Variation

If an enforcement application is made the other party may in response, make a variation application.  Where there is a settlement of property, with the sale to be postponed until a specified event, the court cannot adjust the primary property adjustment order, but can vary the contingent sale of property order (section 31(2)(f) Matrimonial Causes Act 1973).  Accordingly, whilst an order for sale can be discharged, varied or suspended the court cannot vary the terms on which the property is held or the terms on which the sale proceeds are subsequently divided.

Conclusion

If after the making of a financial remedy order the other party is failing to co-operate with an order for sale or transfer following divorce, you can make an enforcement application. You can ask the court to make orders that not only deal with the mechanics of the sale but also ensure the legal documentation to complete the sale or transfer are signed if the other party refuse to do so.

The team at Watson Morris Family Law can help you navigate the law on enforcement of your divorce order. For an initial free no obligation discussion to see how we can help please contact us.  

Written by Caroline Watson

April 14, 2023

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