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Property And Divorce - Legal Remedies In Upturned Market

Alexandra Hirst & Edward Allan, 2 June 2020

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Often the main asset in a divorce, many financial settlements revolve around the family home. In the current climate, negotiating its value and subsequent sale is especially fraught for couples. Associates at Boodle Hatfield explain what they need to consider in this market and what remedies courts can offer when talks break down.

Divorce is said to be one of the main drivers of the housing market, along with destitution and death, and the pandemic has significantly disrupted the market, from viewings to valuations. Alexandra Hirst and Edward Allan, in the family and residential law teams at Boodle Hatfield, look at how to keep negotiations fair and moving, even when what constitutes a ‘fair’ value in the current turmoil is hard to agree on. The authors stress that divorcing spouses "should do their very best to present a united front throughout the sale." As always, we welcome this timely contribution and invite readers to respond. Email tom.burroughes@wealthbriefing.com or jackie.bennion@clearviewpublishing.com.

Valuations are a key aspect to the divorce process; before assets can be divided between the parties it is important to know what they are worth, otherwise neither party can safely negotiate a financial settlement.

Where there is a degree of trust and agreement between the parties, it may be possible simply to instruct an agent on a joint basis to market the property for an agreed price. If it is not possible for the couple to agree, they can seek a direction from a judge as to how to proceed. It may be decided that the best course of action is for one party to provide the other with a choice of, say, three estate agents and the other to select one agent from the three who will market the property.

Another option might be for a number of agents to carry out appraisals and then an average price selected. If it is deemed necessary, a formal application may be made to court for permission to appoint a single joint expert to undertake a full valuation of the property. The parties would then usually have leave to ask questions of the expert should they disagree with the outcome of the valuation report.

To ensure that parties cooperate with the process of selling an asset, it is possible to include wording in a court order obliging one party or the other to use their best endeavours to ensure that all necessary paperwork is signed and dealt with in a timely manner. A spouse may seek an undertaking (a formal promise to the court) to cooperate with the sale. In extreme cases, if one party were to refuse to deal with the signing of a transfer deed, the court can step in and order that the transfer take place; the judge effectively signing the transfer deed.

As indicated above, a lot of time can pass before divorcing spouses have even agreed on a value for a property, not to mention what is going to happen to that property. If it is eventually agreed that a sale should take place, it is likely that the parties will then want this to take place as soon as possible. Selling a property can be a slow process at the best of times but with the restrictions in place because of the coronavirus pandemic, the concern is that it will take even longer.

Steps people can take to speed things up:
* Before the property is marketed, conveyancing solicitors should be instructed to start compiling the detailed sales pack that the buyer will expect to see.
* Identify the necessary paperwork, such as planning permissions, building regulation certificates, and guarantees, and for leasehold properties, any landlord consents or approvals. Provided enough time is left, missing paperwork can be obtained and delays avoided.
* Prepare to market the property, the agents commissioning will arrange the photos and filming a virtual tour. With social distancing still in place, it makes sense to use the potential of virtual viewings before serious buyers decide to proceed with a physical viewing. Where there is strong interest to justify a physical viewing, the agents are required to follow government guidance to ensure that these are carried out in a safe manner, minimising the risk of infection.
* Spouses should agree ahead of the sale what fittings and contents are being included, to avoid any confusion with the buyer that could have a negative impact on the sale.

Divorcing spouses should also do their very best to present a united front throughout the sale and each should understand their next steps to avoid any uncertainty or concern for a buyer.

The authors are Alexandra Hirst, associate in the Boodle Hatfield family team, and Edward Allan, senior associate in the firm's residential property team.

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