Is a Clean Break Order the same as a Consent Order?
The short answer is no, but a clean break can form part of a Consent Order. We explain the main difference between the two below and give some examples of when you might want to use them.
When getting a divorce, each of you has a legal right to live in the family home. Even if your name is on the mortgage or the Title Deeds, you shouldn’t assume that you’ll be entitled to continue living there following a divorce, or that you’ll be entitled to 100% of the property’s value.
On the other hand, if your name isn’t on the mortgage or Title Deeds, don’t expect that you’ll have to leave the property. You have a legal right to a share of your ex’s assets and this includes the matrimonial home.
For initial advice get in touch with our Divorce Solicitors.
There are two ways to decide what happens to the house when you get divorced; either you agree between yourselves, or the Court will decide on your behalf. If both of you have already agreed to transfer the property from joint owners to a sole owner, you should contact a Divorce Solicitor who can determine if the agreement is fair, otherwise the divorce financial settlement could be rejected when it is reviewed by a Judge. See Divorce Financial Orders.
The Solicitor will take all the information required in order to begin the process of transferring the property to you or to your ex-partner, whichever has been agreed.
Your Solicitor will prepare a Transfer Deed which is a legal document used to change ownership of a property.
No. This would be a conflict of interest.
If there is no mortgage on the property then, strictly speaking, neither of you needs to instruct a Solicitor. You can transfer the property yourselves by completing and submitting the relevant documents to HM Land Registry.
However, it’s strongly recommended that you both appoint a Solicitor.
If your ex-partner doesn’t instruct a Divorce Solicitor, they’ll still need a Solicitor to complete a form which will verify their identity (an ID1 Form), which must then be sent to your Solicitor. This is because the Land Registry will not transfer any property unless they are satisfied that the identity of all parties has been verified by a Solicitor.
In addition, your Solicitor will send the Transfer Deed to your ex-partner, who will need to sign and return this.
Keep paying the mortgage. Even if one of you has moved out, you’re both equally responsible for the debt until the mortgage is paid off, not just while you live in the property.
If you have a mortgage, you would need to involve the lender in the process of transferring the property into your sole name. Some lenders are sympathetic towards couples going through divorce or separation and may be able to offer a payment holiday to help with any added financial strain.
If you transfer a mortgage into your sole name, your lender will want to make sure that you can afford the payments. Under Financial Conduct Authority (FCA) rules, lenders must ask in-depth questions and carry out more checks to decide this. A lender will insist you use a Solicitor to complete the changes.
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