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Preventing the Sale of Marital Property on Divorce

Posted on July 28th 2017 by

S39(1) Senior Courts Act 1981 (“the Act”) allows the Court to make an order requiring a person to execute a conveyance, contract or document. If that person fails to execute such documents then a person nominated by the Court can sign on behalf of that person if they neglect or refuse to comply with the order or they cannot be found.

In the case of Welch v Welch [2017] Mr Welch obtained an order  which required his wife to sign the Conveyancing documentation in the sale of their property (a property in which Mrs Welch only held a 1% beneficial ownership). Despite the order, she refused to sign the contract and under the order the Court was allowed to execute in her place.  As well as failing to execute the documentation, Mrs Welch contacted prospective purchasers and gave them “barrages of misinformation” which was “deliberately and maliciously designed to frighten them off from the transaction” and she was successful. She found out their details from the contract paperwork that she had received for signing.

Rather than executing the document himself, the Court ordered that the documentation Mrs Welch was required  to sign should  not include  the names of the purchaser or their solicitors therefore preventing her being able to identify and contact them. Mrs Welch argued that the contract and transfer would not be valid if they did not contain the full names of the purchasers and their solicitor’s details. Despite her argument the Court found that these identification details made no material difference to the transaction or documents and would not invalidate the execution thereof. The Court relied on the fact that the Act did not contain any requirement that every detail of the contract must be provided to the party signing. It was obviously more favourable to the parties involved that Mrs Welch signed the documentation personally and the proposed redaction of the contract meant that she could do this without there being a risk of her frustrating  the sale.

Prior to this case there was no other occasion where this had occurred however it will aid in circumstances where this happens in the future. The Court noted that Mrs Welch was only to receive 1% of the sale proceeds therefore leaving the question of whether this declaration would have been made if she was entitled to receive a greater percentage of the sale proceeds. 

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