Property Adjustment Order

What Is A Property Adjustment Order?

A property adjustment order is a court order that changes the ownership or interests in property as part of a financial settlement during divorce or dissolution proceedings. The property in question can include the family home, investment properties, or other real estate assets. The order can transfer property outright to one party, adjust the ownership proportions, or dictate the sale of the property and division of the proceeds.

Legal Framework

Property Adjustment Orders are governed by the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004. These acts empower the courts to make orders that adjust property ownership to achieve fairness and equity in financial settlements following a marriage or civil partnership breakdown. The primary objective of these laws is to ensure that both parties are provided with a fair share of matrimonial assets, considering their needs, contributions, and future financial prospects.

The Process of Obtaining a Property Adjustment Order

Obtaining a Property Adjustment Order involves several stages, each requiring careful assessment, legal procedures, and the involvement of various professionals.

Initial Assessment and Disclosure

The process begins with a comprehensive assessment of the marital assets. Both parties must provide full financial disclosure, detailing all assets, liabilities, income, and expenses. This step ensures transparency and gives the court a clear picture of the financial landscape.

Negotiation and Mediation

Negotiation and mediation are crucial in reaching an agreement on property division. Both parties, often with the assistance of their solicitors, discuss and negotiate the terms of the property adjustment. Mediation can be particularly beneficial in facilitating amicable agreements and reducing the need for contentious court proceedings.

Court Application

If an agreement is not reached through negotiation and mediation, one party can apply to the court for a Property Adjustment Order. The application includes detailed financial statements and supporting evidence. The court will consider the application based on various factors, including the welfare of any children involved, the financial needs and resources of both parties, their contributions to the marriage, and their future earning capacity.

Court Hearing

During the court hearing, both parties present their arguments and evidence. The court examines the financial circumstances, the needs of both parties and the welfare of any children. The judge then decides on the Property Adjustment Order, aiming to achieve a fair and equitable distribution of property.

Types of Property Adjustment Orders

Property Adjustment Orders can vary in terms of their specifics and include several different types, each designed to address different aspects of property division.

Transfer of Property Order

A Transfer of Property Order directs that a specific property be transferred from one party to the other. This is often used when one party is to retain the family home while the other party receives other assets or financial compensation.

Order for Sale

An Order for Sale directs that a property be sold, and the proceeds divided between the parties. This type of order is common when it is not feasible for either party to retain the property due to financial constraints.

Mesher Order

A Mesher Order, named after a landmark case, allows for the deferred sale of the family home. The property remains in joint ownership until a specified event occurs, such as the youngest child reaching adulthood or the remarriage of one party. This type of order is often used to provide stability for children.

Martin Order

Like a Mesher Order, a Martin Order allows one party to remain in the family home for life or until a specific event, with the other party retaining a financial interest in the property. This type of order is used when one party needs to remain in the home, but the other party retains a future interest in the property’s value.

Factors Considered by the Court

When determining a Property Adjustment Order, the court considers several key factors to ensure a fair and equitable distribution of property:

Welfare of Children

The welfare of any children involved is the court’s paramount consideration. Ensuring the children have a stable and secure home environment is a priority in the court’s decision-making process.

Financial Needs and Resources

The court assesses both parties’ financial needs and resources, including their income, earning capacity, property, and other financial assets. The aim is to ensure that both parties meet their reasonable needs post-separation.

Standard of Living

The standard of living enjoyed during the marriage is considered, with the court aiming to ensure that both parties can maintain a similar standard of living post-separation.

Contributions to the Marriage

The court recognises financial and non-financial contributions made by each party during the marriage, including contributions to homemaking and childcare.

Future Earning Capacity

The future earning capacity of both parties is considered, including any potential for retraining or career advancement.

Benefits of Property Adjustment Orders

Property Adjustment Orders offer several benefits, providing a structured and legally binding framework for the division of property.

Fair Distribution of Assets

These orders ensure that the matrimonial assets are divided fairly and equitably, considering both parties’ needs and contributions.

Financial Security

Property Adjustment Orders provide financial security for both parties by ensuring they receive a fair share of the property assets, enabling them to rebuild their lives post-separation.

Stability for Children

Property Adjustment Orders help provide stability and continuity for children’s well-being by addressing their housing needs.

Challenges and Considerations

While Property Adjustment Orders provide essential financial protection, they also present several considerations and challenges that must be addressed.

Valuation of Property

Accurate valuation of the property is crucial to ensuring a fair distribution. Disputes can arise over property valuations, requiring the involvement of professional valuers to provide impartial assessments.

Financial Complexity

The financial complexity of high-value assets or multiple properties can complicate the process. Careful financial planning and expert advice are necessary to navigate these complexities effectively.

Emotional Impact

The process of dividing property can be emotionally challenging for both parties. Ensuring that both parties receive appropriate emotional support and counselling can help them cope with the stress and anxiety associated with the process.

Alternatives to Property Adjustment Orders

While Property Adjustment Orders are a key mechanism for dividing property, alternative options may be more appropriate in certain situations.

Lump Sum Orders

Lump Sum Orders involve one party making a one-time payment to the other, providing immediate financial settlement. This method offers finality and eliminates ongoing financial dependency.

Pension Sharing Orders

Pension Sharing Orders divide pension assets between the parties, creating separate pension pots. This method provides long-term financial security for the recipient but requires accurate valuation and consideration of future pension benefits.

Periodical Payments Orders

Periodical Payments Orders, also known as maintenance orders, require one party to make regular payments to the other for a specified period or until a particular event occurs. These orders provide ongoing financial support and can be tailored to the specific needs of both parties.

Legal and Professional Advice

Navigating the complexities of property adjustment orders and alternative arrangements necessitates expert legal and financial advice. Engaging the services of solicitors and financial advisors is crucial to ensuring a fair and legally sound agreement.

Legal Advice

Solicitors play a vital role in guiding clients through the legal aspects of property adjustment orders. They assist in negotiating terms, drafting agreements, and representing clients in court if necessary. Legal advice ensures that the rights and interests of both parties are protected.

Financial Advice

Financial advisors provide valuable insights into the financial implications of property adjustment orders and other arrangements. They help clients understand the long-term impact on their financial security, including tax considerations, investment strategies, and retirement planning.

Case Studies and Practical Examples

To demonstrate the practical application of Property Adjustment Orders, consider the following case studies:

Case Study 1: Sarah and David

Sarah and David have been married for 15 years and have two children. David is the primary earner, while Sarah has been a homemaker. During their divorce, the court issues a Property Adjustment Order transferring the family home to Sarah to provide stability for the children. David retains other assets and investments equivalent in value to his share of the home. This arrangement ensures that the children have a stable home environment while providing David with a fair share of the family’s marital assets.

Case Study 2: Emma and James

Emma and James decide to divorce after 20 years of marriage. They own multiple properties, including the family home and several investment properties. The court issues an Order for Sale for the investment properties, directing that the proceeds be divided equally. The family home is transferred to Emma, with a Mesher Order stipulating that it will be sold when their youngest child reaches 18, at this point, the proceeds will be divided. This arrangement provides financial security for both parties and ensures stability for the children.

Enforcement of Property Adjustment Orders

Ensuring compliance with Property Adjustment Orders is essential for maintaining financial stability for both parties. Several legal remedies are available if one party fails to comply with the order:

Legal Action

If necessary, the recipient can take legal action to enforce the order, including applying for an enforcement order from the court. The court may take measures to ensure compliance, such as seizing assets or garnishing wages.

Contempt of Court

Non-compliance with a Property Adjustment Order can result in a finding of contempt of court. This can lead to fines or imprisonment for the non-compliant party.

Conclusion

Property Adjustment Orders play a crucial role in financial settlements after a divorce or the dissolution of a civil partnership. They provide important financial protection and ensure a fair and equitable distribution of property. Understanding the legal framework, the process of obtaining and enforcing these orders, and their implications is essential for making informed decisions.

It’s also important to consider alternative methods, such as Lump Sum Orders, Pension Sharing Orders, and Periodic Payments Orders, to determine the most suitable arrangement. Seeking expert legal and financial advice is vital to ensuring a fair and sustainable financial settlement.

At DLS Solicitors, we are dedicated to offering comprehensive legal support and guidance to clients navigating the complexities of Property Adjustment Orders. Our experienced team is here to assist with negotiations, court applications, and tailored advice, ensuring that your financial future is secure. Whether you are looking to obtain a Property Adjustment Order, enforce an existing order, or explore alternative arrangements, we are here to help you achieve the best possible outcome.