Charging order on property in divorce: what you need to know
A charging order on property is a legal mechanism that can play a significant role in how financial settlements are resolved after divorce. Whether you are trying to enforce a court order or protect a financial interest, understanding how charging orders work — and when they apply — is important before you make any decisions.
This article explains the basics. It does not constitute legal advice. Every divorce is different, and you should speak to a solicitor about your specific situation. Tyrer Roxburgh offer a fixed fee family law consultation to discuss your legal options.
What is a charging order on property?
A charging order is a court order made under the Charging Orders Act 1979. It secures a sum of money already owed under a judgment or court order against the debtor’s property. Where the sum is owed under a family court order, the family court itself can make the charging order.
Two points are worth understanding. First, under section 2 of the Act a charge can only be imposed on an interest the debtor holds beneficially. Where a home is jointly owned, it is therefore the paying spouse’s beneficial share that is charged, not the whole property. Second, a charging order takes effect as an equitable charge rather than a mortgage, and it is registered at HM Land Registry to protect its priority.
The practical effect is that the secured sum is paid out of the debtor’s share of the proceeds when the property is eventually sold or refinanced. It gives the receiving spouse real security. It does not, by itself, produce payment or force a sale.
How does a charging order arise in divorce?
In divorce proceedings, financial orders can cover a wide range of arrangements. A lump sum order, for example, may require one spouse to pay the other a specific amount of money. If that payment is not made, the receiving spouse may apply to the court to enforce it.
One enforcement method is to apply for a charging order on the paying spouse’s property. In addition, a charging order can sometimes feature as part of the original financial settlement, particularly where an immediate sale of the property is not appropriate but the receiving spouse still needs security for a future payment.
A note on terminology is useful here. A charging order in the strict sense is an enforcement remedy: it requires a sum to be owed already. Where a settlement defers payment from the outset, for example under a Mesher order (an arrangement where the family home is not sold immediately but deferred, often until children reach a certain age), the receiving spouse’s eventual share is usually secured by the terms of the order itself or by a legal charge rather than by a charging order. The effect is similar, but the route is different.
Charging orders and the family home
Questions about the family home sit at the heart of most divorce financial settlements. If you are wondering who gets the house in divorce, the answer depends on a range of factors, including each spouse’s financial needs, the welfare of any children, contributions made during the marriage, and the overall assets available.
A charging order is not the same as an outright transfer of property. Instead, it registers a financial interest. However, it does give real protection, because the property cannot change hands without that interest being discharged first.
In some cases, the court may also make a property adjustment order, which transfers ownership of a property from one spouse to another, or into joint names, as part of the settlement. A charging order and a property adjustment order are distinct tools, though both can feature within the same financial settlement depending on the circumstances.
Charging order versus legal charge: is there a difference?
It is worth clarifying the terminology here. A charging order is granted by the court following an application. A legal charge is a contractual security interest, similar in nature to a mortgage, that can be agreed between parties.
In divorce financial settlements, solicitors sometimes draft a deed of charge (a formal written agreement creating a legal charge) as part of a negotiated outcome. This can achieve a similar result to a charging order without requiring a contested court application. However, both approaches need careful legal drafting to be effective and enforceable.
When can a charging order be enforced?
Registering a charge is one step. Enforcing it — by compelling a sale of the property — is another, and it typically requires a separate court application for an order for sale.
Courts do not grant an order for sale automatically. They weigh up competing interests, including the rights of anyone else living in the property and the needs of any children. Therefore, a charging order offers security rather than a guaranteed immediate route to payment.
In many cases, the charge simply sits on the property until it is eventually sold or transferred. At that point, the secured sum is paid out of the proceeds before the seller receives their share. This makes a charging order a useful tool for longer-term financial settlements, particularly where one spouse remains in the family home for a number of years.
What should you do if a charging order affects your property?
If you discover that a charging order has been registered against your property, or if you are considering applying for one as part of enforcing a financial order, you should take legal advice promptly.
Tyrer Roxburgh Solicitors advises clients across England and Wales on all aspects of divorce financial settlements, including enforcement of court orders. We offer a fixed-fee initial consultation so you can understand your position clearly before committing to any course of action.
Book a fixed-fee family law consultation here.
FAQs: charging order on property and divorce
Can my ex-spouse put a charging order on our family home?
Yes, in certain circumstances. If a court has made a financial order requiring you to pay a lump sum and you have not paid it, your former spouse may apply to the court for a charging order against your property. The court will consider whether it is appropriate to grant one.
Does a charging order mean I have to sell my house immediately?
Not automatically. A charging order secures the debt against the property, but it does not by itself force a sale. Your former spouse would need to make a separate application for an order for sale, and the court would weigh up all relevant factors before granting one.
Can a charging order be removed?
Yes. Once the underlying debt or financial obligation has been paid in full, an application can be made under section 3(5) of the Charging Orders Act 1979 to the court that made the order, asking it to discharge the charging order. Under section 3(6), that order can also direct that the entry protecting the charge at HM Land Registry be cancelled. A solicitor can deal with both steps.
What is the difference between a charging order and a Mesher order?
A Mesher order defers the sale of the family home to a future trigger point, such as the youngest child reaching 18. A charging order is different: it is an enforcement remedy that secures a sum already owed under a court order. Where a Mesher order defers one spouse’s share, that share is normally protected by the terms of the order itself or by a legal charge, rather than by a charging order.
About the Author
Vasoulla Constantinou is a partner at the firm and Head of Family Law. She is a SRA regulated family law solicitor with over 20 years of experience and has been awarded a specialist accreditation by Resolution, an organisation committed to the constructive resolution of family disputes in a non-confrontational manner. Vas advises clients on all matters relating to family law including divorce, financial issues and child law. For more information visit her full profile.
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