Q&As

If a consent order provides for the matrimonial home to be transferred to the wife subject to a charge in favour of the husband for a percentage of the value with the charge exercisable on one of the trigger events provided for, would the husband require leave of the court to enforce the charge in the event of one of the trigger events occurring if the children were in full time education and under 18?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 18/05/2017

The following Family Q&A Produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • If a consent order provides for the matrimonial home to be transferred to the wife subject to a charge in favour of the husband for a percentage of the value with the charge exercisable on one of the trigger events provided for, would the husband require leave of the court to enforce the charge in the event of one of the trigger events occurring if the children were in full time education and under 18?

The drafting of a consent order requires knowledge not just of family law and procedure, but of trusts, land law and potentially many other areas of law. In addition, orders need to be drafted very carefully to ensure that they accord with the agreement reached between the parties, and do not have unintended consequences.

It is common in cases where there are limited resources for the court to make what is known as a Mesher order, after the eponymous case (Mesher v Mesher and Hall). Such an order allows one spouse, usually the one with primary responsibility for the care of the children, to remain in the former matrimonial home until the happening of specified trigger events. In effect, one party loans their equity and/or their mortgage capacity to the other party in order that the latter's needs can be met. The order can either provide that the property is transferred to the spouse remaining in the property, subject to a charge in favour of the other spouse, or that the property remains in joint names (common where there is a mortgage) and is sold at a later date. See Pra

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