Staying safe in warmer times
April 26 2021Read more
This article aims to explore how mediation can help resolve disputes and provide insight into Court orders in relation to the sale of a property when it’s not been possible to reach an agreement.
If you haven't already, you should check out part 1 of this article for a better understanding of Cohabitation and property rights.
What is Mediation? Mediation can be a cost-effective method of helping couples resolve any differences they have about money, property or children when they separate. Mediation works by helping people find practical solutions that feel fair for both parties. The first step is to attend a meeting with a mediator so you can both establish whether mediation is right for you and see the benefits that it can provide. This is generally referred to as a ‘Mediation Information & Assessment Meeting’ (MIAM). Ideally this is attended with your ex-partner, but it is possible to go separately in the first instance. The mediator is a trained professional who is there to facilitate each party’s decision making. They will at all times remain impartial, but will work towards ensuring that each party is following the correct structure and able to put forward their own positions. The ultimate goal is to agree on a fair and amicable outcome and mediation does provide a high success rate for those that fully engage with the process. It typically takes 3-5 mediation sessions to reach a resolution depending on the nature of the issues being brought forward. When an agreement is reached, the mediator will write down a ‘memorandum of understanding’ that clearly sets out what you have decided. Although the majority of the work is completed at this point, please be aware that this is not a legally binding document until drafted by a solicitor and approved by the courts. For information on family mediation and contact details for local qualified family mediators please contact Health Assured; or visit the following website depending on jurisdiction:
What if mediation doesn’t work? If mediation doesn’t resolve the situation, then you may wish to consider legal avenues for resolution. There are a range of orders that may be applicable dependent on the situation so it’s important to seek support when deciding on how to proceed however, with cohabiting couples the most commonly used avenue is an ‘Order for Sale’. This is generally relevant when the property is jointly owned and one party refuses to cooperate with the sale of the property. What is an order for sale? An order for sale is when a property is jointly owned it requires each party to consent to it being sold. If a sale cannot be agreed upon, one of the parties can apply to the court for permission to sell under Section 14 of the Trusts of Land and Appointment of Trustees Act (TOLATA) 1996 (England & Wales). How to apply to court for an order for sale You can apply for an order for sale yourself but you may wish to instruct a solicitor. Before any application is made to the Court, you will need to provide the other party with a letter of claim, which sets out your case in sufficient detail to allow them to fully respond to your request. Once completed, you will need to obtain a County Court Judgement (CCJ) which states whether your request for an order has been granted or refused. If granted, you can start the process of applying for an order for sale in which the Court will to consider the TOLATA 1996 whilst coming to a decision. Next steps After the order for sale has been issued, the second party should comply with the sale, however, in some cases they may continue to be difficult. If this happens it is possible to go back to the court to have the judge sign the sale documents on their behalf - this can be done for both contract of sale and completion. This can drastically slow down the process of selling your property, but it will ensure that you will get there in the end. For the below jurisdictions the process can be complicated and we would suggest contacting the Health Assured helpline for further advice, or seeking specialist support from a solicitor. As a starting point, if you wish to locate a solicitor in your area please see the below links:
Please contact Health Assured on our 24-hour helpline: 0800 030 5182 if you have any further queries.
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