How to avoid problems of enforcement: Sale of FMH

It is always sensible to draft final orders with one eye on enforcement. An order for sale of the former matrimonial home (‘FMH’) can be a particularly emotive order, often fiercely resisted by one of the parties. This post is a summary of practical suggestions to ensure a sale goes smoothly when anticipating - and trying to avoid - tricky problems of enforcement.

 

A default provision of the sale of FMH can also be a useful tool to avoid enforcement issues in relation to other orders, e.g. payment of lump sum. The following provisions can similarly be attached to an order sale in default. Remember to include the division of net proceeds of sale in such circumstances.

 

1. Try and pre-empt practical problems arising

 

Consider including the following as provisions attaching to the order for sale:

  • pre-determine estate agents and conveyancing solicitors to be used

e.g. “the FMH shall be placed on the open market for sale forthwith with such estate agents as may be agreed between the parties or in default of agreement determined by the court”;

“such solicitors as may be agreed between the parties or in default of agreement determined by the court shall have the conduct of the conveyancing work relating to the sale”;

Even better to avoid unnecessary further correspondence – try and agree the identity at court. Ask your client to have a think about this before if possible.

 

  • pre-determine the price to market property for sale
  • pre-determine wht offers should be accepted
  • prevent the other party attending the property during viewings
  • or attempt to persuade the court that one party should have sole conduct of sale. This is usually reserved to situations where problems have already arisen in connection with the sale; and
  • Record on the order if it is agreed that your client may apply to the court for a District Judge to sign documents in relation to the sale of the FMH, if the other party fails to sign within 7 days of being served with a request to do so.

 

 

2. Consider financial arrangements before sale

 

  • include in the order who will pay the mortgage and outgoings of the FMH before completion of sale.
  • This may include indemnifying the other party in respect of any liability which is not discharged as and when each payment becomes due.

 

These provisions should help protect your client from problems arising - so you can hopefully avoid enforcement proceedings.

 

Cordelia Williams