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An order approving a statutory Will was made by the Court of Protection prior to the testator's death but the copy of the order was not received by the firm until after the death. As the order was made prior to death can the will be properly executed by the person authorised by the Court of Protection and held to be valid?
Q&As
Schedule 2 of the Mental Capacity Act 2005 sets out the formalities for the execution of a statutory Will and provides that, once authorised by an order of the Court of Protection, the statutory Will must be executed and then sealed with the seal of the Court of Protection. A failure to
An order for child periodical payments has been made as part of a financial order pursuant to the Matrimonial Causes Act 1973. Will the order survive the death of the paying party? If so, how should the personal representatives administer the order in circumstances where the bulk of the estate has been left to the children of the deceased? If not, what options exist?
Q&As
Section 29(4) of the Matrimonial Causes Act 1973 (MCA 1973) provides that ‘[a]ny periodical payments order in favour of a child shall, notwithstanding anything in the order, cease to have effect on the death of the person liable to make payments under the order, except in relation to any arrears due under the
An order for sale has been made by consent, with the net proceeds to be divided in accordance with the terms of the order. At the time the order was made, party A did not think they could remortgage the property in order to pay a lump sum to party B. They have now been approved for a remortgage, and will be able to pay the same amount to party B as under the terms of the order. Can party A make an application under section 24A(1) of the Matrimonial Causes Act 1973 to vary the terms of the order for sale, so that the property is sold to them instead of a third party? The parties have received an offer on the property and party B wishes to proceed with the sale to a third party. So long as party A can show that they have a mortgage offer, and that they can complete quickly, is there any reason why the court would reject their application?
Q&As
The Matrimonial Causes Act 1973 (MCA 1973) provides the
An order for sale has been made to enforce a charging order against a debtor who owns the property subject to mortgage absolutely. Possession has been ordered by the court against the defendant by a date which has now expired. However, there are sitting tenants in the property (pre-dating the order) and the order for sale is without prejudice to their rights. What can the creditor do? Should a possession order be sought against the tenants and what would the procedure be?
Q&As
Charging orders may be enforced by an order for sale of the charged property, following the process in CPR 73.10C and CPR PD 73 (paras 4.1–4.5). Appendix A to CPR PD 73 sets out standard forms of order for sale, although these are not prescribed and may be adapted by the court. The standard order for sale requires the defendant to deliver possession of the property to the claimant by a certain date. A possession order can be enforced by a warrant of possession,
An order for the sale of the former matrimonial home was made in financial remedy proceedings. The occupying spouse has frustrated the sale and incurred mortgage arrears, with the consequence that the mortgagee has indicated they will seek to repossess the property. Should the mortgagee be served with an application to enforce the order for sale so that they can make representations? What would be the procedural requirements?
Q&As
It is unfortunately a regular occurrence that where an order for sale of the former matrimonial home is made in financial remedy proceedings, one party will seek to frustrate that sale by insisting on an appropriate sale price, or failing to allow viewings, or refusing to sign the necessary documents. This may lead the other spouse to be forced to make an application to court for a penal notice, conduct of the sale, or for the court to sign the necessary documentation. Unfortunately, this can lead to a delay, and can result in the mortgagee taking steps to enforce the mortgage where it has gone into arrears
An order has been made in financial remedy proceedings providing for a clean break between the parties. The order did not make provision in relation to a joint liability of the parties regarding arrears of school fees. Does that order prevent one party from issuing separate civil proceedings (if there are grounds to do so) against the other in respect of that joint liability?
Q&As
The first consideration must be the precise terms of the clean break order made. While the actual dismissal of claims contained in the operative part of the order will relate to orders capable of being made in the context of financial remedy proceedings, there will usually have been an introductory recital containing an all-embracing clean break (for example, the introductory recital at paragraph 24 of order 2.1 in the standard compendium of orders, see Precedent: Standard order 2.1—financial remedy order). If such a recital is present, it is capable of being used as part of a defence by the defendant in any civil proceedings brought in the County Court. If there is no such recital although
An order made by consent provides for maintenance to be paid to the parent with care for the benefit of the child until the child reaches the age of 18 or finishes their secondary education (whichever is later), and thereafter for the maintenance to be paid directly to the child until they finish their tertiary education. In the event of the payer defaulting in relation to payments direct to the child, how can the order be enforced? Can it be enforced on behalf of the child, or can the child enforce the order even where they were not a party to the original order?
Q&As
An order made within financial remedy proceedings between divorcing spouses may make provision for periodical payments to be paid by one party to another in a specified amount and for a period or on a joint lives basis, or subject to the occurring of certain triggers. By section 23 of the Matrimonial Causes Act 1973 (MCA 1973), the court may order that a party pay to the other party periodical payments
An order provided that one of the parties would purchase the other party’s interest in a property for a figure that would be arrived at by way of a valuation. Where the parties instead reach an agreement as to the sum to be paid without a valuation, how can this departure from the terms of the order be recorded so as to protect against a party later seeking a valuation in compliance with the order? Given capital orders cannot be varied, would an exchange of open correspondence suffice?
Q&As
While it is correct that a property adjustment made under section 24 of the Matrimonial Causes Act 1973 (MCA 1973) may not be varied, it may well be that a true construction of the order in question includes an order for sale of property made under MCA 1973, s 24A in that the order may provide for the sale of the property in the event that one of the parties is unable to purchase the other party’s interest for the figure arrived at by way of a valuation. If this is the
An order was made by consent in financial remedy proceedings in 1995. The parties now wish the court to set that order aside by consent and to make another order by consent. Does the court have jurisdiction to do so?
Q&As
Whether or not the court will have jurisdiction to set aside the existing order and make a new order by consent (and choose to exercise such jurisdiction as it may have) will depend on the precise circumstances of the case, in particular: (1) why the 1995 consent order was not fully implemented (if indeed this is the case), and (2) the reason(s) why the parties wish to set it aside and replace it with a new consent order. The Family Court has power to ‘vary, suspend, rescind or revive’ an order under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984), which in turn is given relevant procedural effect by the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, 9.9A in respect of financial remedy orders. FPR 2010, SI 2010/2955, 9.9A refers to the power to ‘set aside’
An order was made by consent that included provision for child maintenance until the child attained the age of 18 and thereafter for maintenance to be paid directly to the child until they finished tertiary education. When the child turned 18, the paying parent made an application to the Child Maintenance Service for a calculation and ceased payments under the terms of the order. The child is now 19 and about to start university. Could an application be made to enforce the maintenance order and if so by whom? Alternatively, could the court make a school fees order in relation to a 19-year-old at university?
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One of the situations where the Child Maintenance Service (CMS) will not have jurisdiction is where a child periodical payments order is made by a court by consent (per section 8(5) of the Child Support Act 1991 (CSA 1991)). However, where such a maintenance order (post-dating 3 March 2003) has been in place for more than one year, either parent may make an application to the CMS (CSA 1991, s 4(10)(aa)). Upon such an application,
An order was made providing for the former family home to be held on trust pending the usual trigger events for sale to include the youngest child attaining the age of 18, with the occupying party in sole occupation pending sale. The youngest child attained the age of 18 two years ago. In the absence of co-operation with a sale, would an application for sale be made in Form D11 using the Family Procedure Rules 2010, Pt 18 procedure? Can an application also be made for an occupation rent to be paid?
Q&As
In the circumstances outlined in the question, an application for an order for sale may be made adopting the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 18 procedure on Form D11—Application notice rather than by way of possession proceedings in the County Court (see Derhalli v Derhalli). The ability to claim an occupation rent will depend upon the interpretation
An order was made under Schedule 1 to the Children Act 1989 for a property to be placed in trust for the benefit of a child and revert to the child’s parent when the child completes their education. If that parent is made bankrupt, will the trustee in bankruptcy be bound by the terms of the trust?
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The decision in Mountney v Treharne provides authority for the general principle that a property adjustment order made before the presentation of the bankruptcy petition will be valid and will bind the trustee. However, there are notable differences between that case and the scenario of this Q&A, ie in that case the order was made under section 24 of the Matrimonial Causes Act 1973, and the husband was ordered to transfer all of his interest in the matrimonial home and did not retain a beneficial or legal interest in the property. See Practice Note: The impact of bankruptcy on divorce proceedings, in particular, the section ‘The impact of bankruptcy on divorce proceedings—The