Module 13 - PI Matrimonial Home Flashcards
Step 1 of Seizing the Matrimonial Home?
Use it or Lose it - Section 283a - 3 years
4 Ways to ‘Use It’?
Realise Interest;
Order for Sale;
Order for Possession;
Obtain Charging Order
What is Step 2 of Seizing the Home?
Calculate the Equity - is it actually worth trying to sell the property?
What do you need to calculate the quite of a home?
Value of property;
Amount owed to the mortgage company;
Details of any other charges
What is the threshold for a low value home?
£1,000
What is Step 3 of Seizing the Home?
How much equity vests in the property? Who owns it / how is it split / equitable exoneration.
Joint Tenants v Tenants in Common
JT - Each person has 100%
TIC - Interest is split - does not have to be 50/50
On bankruptcy, JT is severed and the owners become TIC
Who can take Legal Title?
Sole Name;
Joint Names;
Written in Trust
3 Main Areas where claims for a larger share are made:
Capital Improvements;
Payment of the Deposit;
Mortgage Payments
How does Capital Improvements pay out in the Property?
They are entitled to the lesser of either:
The increase in value of property;
Sum expended on improvements
There is a presumption that the non-bankrupt spouse will be exonerated from liability
True
What is Step 4?
Secure the Equity - SMILE
Secure Property;
Mortgage - notify mortgagee(s) of your appointment;
Insure - ensure appropriate poinsurance cover is in place;
Land Registry Restrictions - register RX1 restriction from HM Land Registry;
Expert Valuation - obtain full valuations
What is Step 5?
Sell the Property
Offer to Spouse;
Voluntary Sale;
Order for possession and sale;
Obtain Charging Order
What is Step 5?
Exceptional Circumstances
What is Step 7?
Section 313 Charge - the last resort…
What is Section 313 Charge?
Trustees can apply to Court for a charging order.
Done only if they are unable to realise the property in any other way.
Amount charged is value of bankrupt’s estate at date of charging order and interest.
Three Key Cases in Matrimonial Law
Treharne & Sands v Forrester - matrimonial (divorce) order post petition but before order then insolvency law trumps matrimonial law.
Mountney v Treharne - matrimonial order was pre petition, pre-bankruptcy order takes precedence - timing
Hill v Haines - transfer of property through divorce was not considered TUV but judge says it COULD be TUV if divorce was a sham
What are the Exempt Assets?
Tools of trade; books, papers, correspondence, vehicle, items for personal use; clothing bedding, pension fund, vacant ecclesiastical benefice, residential tenancy, items held on trust, student loan, income? Proceeds of crime
What do IPO and IPA stand for?
Income Payment Order (court ordered);
Income Payment Arrangement (voluntary)
