Transferring Property Following A Financial Remedy Order: What If The Other Party Refuses To Cooperate?
A property adjustment order is one of the orders that the court has the power to make in determining financial arrangements on divorce, and this can include the transfer of property from one party to another.
To put a transfer of property order into effect, it will be necessary for the parties to execute a transfer deed (Form TR1). If there is a mortgage on the property then it will also be necessary to obtain the mortgagee’s consent, although this blog focuses on the TR1 itself, assuming that the other relevant requirements have been fulfilled.
If one party neglects or refuses to execute the TR1 pursuant to the transfer of property order, or they cannot after reasonable inquiry be found, the court may make an order that the TR1 is executed on behalf of that party (s.39 of the Senior Courts Act, as applied by s.38 County Court Act 1984). This may be done by such person as the court nominates, although will often be done by a District Judge, and will have the same effect as if the TR1 had been executed by the party themselves.
Ideally, if it is anticipated that one party might fail to cooperate with the implementation of a transfer of property order, provision should be included within the financial remedy order itself. Such provision would allow for a District Judge to execute the transfer, should the other party fail to cooperate within a certain timescale.
If there is no such provision within the financial remedy order, a separate application will need to be made to the family court and a hearing may be listed.
If you find yourself in this position it is important that you seek legal advice as early as possible, to ensure that an application can be made to court promptly if necessary. This will be especially important where the transfer is conditional upon the transferee re-mortgaging the property in their sole name, and their re-mortgage offer is time limited.