Q&As

In proceedings in England and Wales, financial settlement terms have been agreed between the parties, including provision for a property in Scotland to be transferred from joint names to one party, subject to the mortgage, and for the property to be sold if the party who is to retain the property cannot release the other party from the mortgage. Are there any special considerations in relation to the consent order and will the Scottish courts enforce an order in relation to the transfer/sale of the property if required?

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Produced in partnership with Marisa Allman of The 36 Group
Published on LexisPSL on 17/12/2020

The following Family Q&A produced in partnership with Marisa Allman of The 36 Group provides comprehensive and up to date legal information covering:

  • In proceedings in England and Wales, financial settlement terms have been agreed between the parties, including provision for a property in Scotland to be transferred from joint names to one party, subject to the mortgage, and for the property to be sold if the party who is to retain the property cannot release the other party from the mortgage. Are there any special considerations in relation to the consent order and will the Scottish courts enforce an order in relation to the transfer/sale of the property if required?

A property transfer order is an order in personam, ie it is not an order in relation to the property itself but directs the spouse concerned to take specific action (see Hamlin v Hamlin and Tallack v Tallack and Broekema). As such, an enforcement action can lie against that spouse in England and Wales if they fail to take the steps they have been ordered to take. This might include, for example, using the procedure in section 39 of the Senior Courts Act 1981 (SCA 1981) to enable the court to sign documents that need to be signed but which have not been signed if that situation arises, SCA 1981, s 39 provides:

'Execution of instrument by person nominated by High Court

  1. (1) Where the High Court or family court has given or made a judgment or order directing a person to execute any conveyance, contract or other document, or to indorse any negotiable ins

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