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Harris
Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2298
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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I am looking in relation to the enforceability of

Resolved Question:

I am looking for advice in relation to the enforceability of a consent order
Submitted: 10 months ago.
Category: Family Law
Expert:  Harris replied 10 months ago.
Hi, thank you for your question. Please confirm:-Where you are located-Which court approved the order and when it was made-What the order is in relation to
Customer: replied 10 months ago.
UK, made in 2011 Gloucester county court by a district judge. The order is a 'consent order' which is intended to address financial matters related to our divorce in 2011
Expert:  Harris replied 10 months ago.
Thank you, ***** ***** not been complied with that you wish to enforce?
Customer: replied 10 months ago.
It is my ex husband who wants to enforce. he is of the view the order allows him to force me to sell the house, at a time of his choosing, at what ever price he chooses. I would like to understand if he can.
Customer: replied 10 months ago.
We jointly own the property and it was agreed it would be rented and NOT sold if in negative equity. It has not been in negative equity for several years, and told I received a letter telling me he has agreed a sale and I am to sign the documentation.
Expert:  Harris replied 10 months ago.
What are the exact terms in the consent order regarding the sale of the home? Could you type them out?
Customer: replied 10 months ago.
AND UPON the Respondent and Applicant recording that the former matrimonial home known as(property address) ("the Property") is currentlyconsidered to be in negative equity at the date of this agreement. The Respondent andApplicant further agreeing that they will rent the Property out until such time that it is nolonger in negative equity, negative equity being defined as the sale price of the Property beingable cover repayment of the mortgage held over the Property at the time of sale and payment ofcosts associated with the sale. Any costs associated with the renting out of the Property shall beborne solely by the Respondent. Any profit, after repayment of any outstanding mortgage overthe Property and costs of sale, obtained from the sale of the Property shall be divided equallybetween the Respondent and Applicant. In the event of dispute regards ***** ***** of the property,the parties are at liberty to return the matter to the court;
Customer: replied 10 months ago.
He tells me if I don't he has been told he can get an order from the court to force me to sign the sale documents.I am homeless by the way, having lived in my parents home with our child for now 5 years since he threw us out. He just bought a £750,000 bed property... I just want to be able to get enough out the house to put a roof over my daughters head. He is trying to sell for lowest price to get a quick sale hence and the estate agent said they don't need my consent to agree an offer on the house...
Expert:  Harris replied 10 months ago.
Thank you - based on what you have outlined in the consent order, he cannot apply to force a sale unless there is equity in the property but unfortunately, this could mean any equity and is not defined as a specific amount.If the property is in joint names he cannot sell without your agreement or enforcement of the consent order.I hope this assists you. If you found this information helpful please provide a positive rating using the stars at the top of this page. I will not be credited for answering your question without a positive rating. Thank you
Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2298
Experience: Family Law - Specialist in Divorce, Financial Relief and Children Matters
Harris and other Family Law Specialists are ready to help you
Customer: replied 10 months ago.
The property has not been in negative equity for 3 years. Why does he get the choice to define when a sale can happen and I do not? I would assume we have equal rights to when - and as with other factors it should be agreed.Here, he has listed the property and accepted an offer for sale - without even involving one of the owners (me).What options do I have please?
Expert:  Harris replied 10 months ago.
Does the consent order not specify timescales and who is to have conduct of the sale and process to sell? It is usual for consent orders dealing with sale of property to ensure there is clarity.
Customer: replied 10 months ago.
no unhelpfully it does not. The only other part that refer to property is the bit which does says'' save as for the above the applicants claims for capital, pension sharing and property adjustment orders stand dismissed forthwith and upon cessation of her rights to periodical payments pursuant to paragraph 1 above, all claims for financial provision do stand dismissed and she shall not be entitled to apply for i) financial provision under part II of the matrimonial causes act 1978. ii) on death of the respondent other than persuant to section 2 of the inheritance (Provision for family & dependents) act 1975in the hearing the judge asked me why I would agree to this order when it was clear I could not house myself. I explained my ex husband was willing to offer this and if I argued I would have nothing. The judge said that he would leave the property piece open so I could claim 100% equity later or make other changes if I was unable to secure housing - he scored out the words ''property adjustment order'' in the order issued by the court. The rest of the order addresses periodical payments (in lieu of child maintenance until our daughter) until she is 15 (which will occur in 13 years) and confirms he will allow myself and our child to have our belongings back from the house as he has refused us entry for anything - even her toys.
Expert:  Harris replied 10 months ago.
If that is all that is stated in the order regarding the property, the judge's comments are unhelpful as the paragraph you have just stated prevents any further claims by each of you against the other, except as allowed in the order - and the order is clear that any proceeds of sale is to be divided equally between you - so essentially you would not be able to claim 100% equity later, or apply for further financial relief.
Customer: replied 10 months ago.
the property related piece is still open. like I said, it was removed from the order.Since the order does not state timing, does that not imply we need to agree?The earlier paragraph I shared does state it can go back to court in the event of dispute. Since no timing is stated, and it has been out of negative equity for years (during which he did not want to sell...) would it not be considered reasonable that timing be agreed by both owners?
Customer: replied 10 months ago.
Just to be clear the order reads, i.e. it does not dismiss property.save as for the above the applicants claims for capital, pension sharing stand dismissed forthwith and upon cessation of her rights to periodical payments pursuant to paragraph 1 above, all claims for financial provision do stand dismissed and she shall not be entitled to apply for i) financial provision under part II of the matrimonial causes act 1978. ii) on death of the respondent other than persuant to section 2 of the inheritance (Provision for family & dependents) act 1975
Expert:  Harris replied 10 months ago.
Ah apologies, as it stated in your previous post that the order says "save as for the above the applicants claims for capital, pension sharing and property adjustment orders stand dismissed forthwith" - the property adjustment order would be in relation to the property. No timing in the order regarding sale would imply agreement is necessary between you, which is why he is threatening returning the matter to court as you do not agree to the sale at this time.
Customer: replied 10 months ago.
No problem. My worry is what will happen if he does go back to the court - will they force me or state we need to agree?The order is very unhelpful. I just don't know what I can do as he has also stated he will claim costs if he is forced to take it to court.
Expert:  Harris replied 10 months ago.
The court will consider the circumstances at the time of the hearing and whether a sale of the property is reasonable - as there is no limit to your claim on property. In relation to costs, the courts would usually only grant costs against a party in these proceedings if conduct is unreasonable and there is delay caused intentionally by one of the parties.

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