Monday, April 28, 2014

Family Lore Clinic: Does a consent order have to be in place before sale?


As usual, the term 'consent order' is taken here to mean the order setting out the agreed financial/property settlement on divorce or dissolution of civil partnership. It is also assumed that the sale referred to is the sale of the former matrimonial home.

It is often a term of a financial/property settlement that the former matrimonial home should be sold. The agreement should then state how the net proceeds of sale (after repayment of any mortgage and deduction of legal and estate agents' fees) are to be divided between the parties - equally, or in some other proportions.

The agreement should be incorporated into a consent order, to ensure that it is both enforceable and final (the order may, for example, state that once the sale has been completed and the net proceeds divided, all further claims of a financial/property nature by either party are to be dismissed, thereby ensuring that no such claims can be made in future).

Sometimes, however, a purchaser is found before the consent order has been made, or before it takes effect when the divorce is finalised. In such a case the parties will not want to delay the sale and thereby risk losing the purchaser, if possible. However, it is generally advisable not to put into effect any financial/property settlement until after the consent order has been made, in case one of the parties changes their mind about the agreement, or the court does not approve it (agreements must be approved by the court before consent orders are made).

There is no reason in principle why the sale cannot go ahead, with the net proceeds being held on deposit pending the obtaining of the consent order. Of course, this may not be possible where either of the parties need their share to re-house themselves. In that case, the only way that the net proceeds can be paid out before the consent order would be with the agreement of the other party.

This post is, of course, a brief summary only. If you require detailed advice then you should consult a specialist family lawyer.

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