Guide to Consent Order with Property Adjustment or Property Transfer
A property adjustment order will often be necessary when splitting the matrimonial home during a divorce.
If you’re unsure whether or not you need a property adjustment order as part of your financial consent order, then continue to read our article as we explain when they are necessary and how to get one.
One of the biggest assets upon divorce is often the matrimonial home. As a result, many of the disputes between divorcing spouses hinge on how to deal with the property upon separation.
Often they will be able to decide between themselves what to do with the property. If they cannot reach an agreement, a court will need to intervene and make a decision on the best course of action.
What is a Property Adjustment Order and why would I need one?
A Property Adjustment Order is a legal document which states how the matrimonial home should be dealt with following a divorce.
A divorcing couple will need a court to issue a Property Adjustment Order to provide legal standing to a financial agreement if this involves the family home.
In the event that they cannot decide how to divide up their home between themselves, it will be left up to the court to impose a financial settlement.
Here are the two most common actions couples take when agreeing on how to separate the family home as part of the overall financial settlement:
1) Property Transfer – This is where ownership of the matrimonial home is transferred to one spouse. This may be an immediate transfer or an agreement to transfer the property at a later date (eg when any children finish full-time education or reach the age of 18).
A property transfer may necessitate also transferring a mortgage or converting a joint mortgage into an individual mortgage.
2) Property Sale – Although this isn’t strictly speaking a property adjustment order, selling up is one of the most common ways of dealing with the matrimonial home.
It is important to include an agreement to put the property on the market in the consent order so that neither party can back out later on.
What types of court orders can be issued?
There are various different court orders that can be issued to deal with matrimonial property, such as:
- Mesher Order – this is essentially the opposite of an agreement to sell the home. It provides for the postponement of the sale of the family home, allowing one of the divorcing parties to remain living in the property for a certain period of time or until a so-called ‘trigger event’. Commonly this will involve the former wife remaining in the property with the children until the children finish full-time education or reach the age of 18 (the trigger event).
- Martin Order – this goes further than a Mesher Order, in that it provides for an indefinite postponement of the sale of the property. The party who is granted residency in the home will often be able to carry on living there for the rest of their lives, subject to certain ‘trigger events’ such as re-marriage or if they voluntarily vacate the property.
How do I get a Property Adjustment Order?
There are basically two ways of getting a Property Adjustment Order:
- Consent Order – these are used to provide legal standing to financial settlements upon divorce. A consent order is essentially a written document that sets out what has been agreed upon between the divorcing parties – in this case regarding how to deal with the matrimonial home. The Property Adjustment Order will essentially form part of the Consent Order.
- Family Court – if the divorcing couple is unable to agree on how to deal with the family home, and mediation does not help, they will need to go to court which will impose a decision via a financial order. In this case the Property Adjustment Order will form part of the financial order.
Does the court need to be involved?
The court will always need to be involved in some capacity when making a Property Adjustment Order.
Even if the divorcing parties agree on how to deal with the property, the ensuing Consent Order needs to be approved by the court before it becomes legally binding.
Who needs to apply for a Property Adjustment Order?
A Property Adjustment Order is often drafted by a family solicitor as part of a Consent Order, which is then submitted to court for approval.
However, it is possible to obtain a Property Adjustment Order via a Consent Order service, such as that provided by Divorce Online.