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family law, interim sale, vacant possession, tolata, divorce, Mostyn
The judge made an order pursuant to FPR 20.2(1)(c)(v) for the matrimonial home to be sold to discharge the parties' debts and for the wife's rights of occupation to be terminated.
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Oct 2, 2015, 04:56 AM
Article ID :117018
(Family Division, Mostyn J, 2 October 2015)
Property – Order for sale – Reckless spending prior to financial agreement – Mounting debts – Whether the wife’s occupation rights could be terminated and an order for sale made pursuant to FPR 20.2(1)(c)(v)
The judge made an order pursuant to FPR 20.2(1)(c)(v) for the matrimonial home to be sold to discharge the parties' debts and for the wife's rights of occupation to be terminated.
The British husband and American wife were married for 16 years and had two children, aged 14 and 12. In 2007 the family returned to live in the UK after living in the USA for 4 years. The matrimonial home was purchased in the husband's sole name with the assistance of a mortgage of over £1m. The husband's mother, who would live in a cottage in the grounds of the property, contributed £517,500 which was given to the husband's sister and then loaned to the husband under a formal loan agreement executed in 2013. The loan would be repaid when the property was sold.
Extensive works were carried out on the property costing in the region of £200,000 and the family was otherwise living and spending at a high rate. The husband's annual income was approximately £163,000 net. They were paying school fees of £56,000 pa.
In 2014 the parties separated and the husband moved into rented accommodation. They had exhausted their available funds including money put aside to pay taxes. The husband had to borrow £45,000 from his business partner and £38,000 from his sister to meet his tax liabilities. A friend had paid sums in excess of £18,000 in respect of his rent and he had borrowed £43,000 from his employer. In addition, £158,000 had been spent and remained unaccounted for. The husband and wife had now spent over £320,000 in legal fees.
The husband applied for the sale of the matrimonial home with vacant possession in order to meet their outstanding debts. The wife resisted the sale.
When making an order for sale the court had power to make a supplementary order requiring an occupant of the property to give vacant possession of it. It would be absurd if that were not so and the court could only make half an order. Under s 13(1) of TOLATA trustees may exclude the entitlement of a beneficiary to occupy land and this power may be exercised by the court by an order under s 14.
If the court had before it an application by one spouse for an interim order for sale of a piece of property and that piece of property was the matrimonial home occupied by the other spouse, then the court could not order vacant possession of it without first undertaking the exercise required by s 33 of the Family Law Act 1996.
The judge was extremely critical of the conduct of the parties, particularly the husband's reckless spending. Taking into account the factors under s 33 of the 1996 Act: (a) the housing needs and housing resources of each of the parties and of any relevant child; (b) the financial resources of each of the parties; (c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and (d) the conduct of the parties in relation to each other and otherwise, it was clear that the house had to be sold as soon as possible.
The wife's occupation rights would be terminated and an order for sale under FPR 20.2(1)(c)(v) was made.
Michael Glaser (instructed by Russell-Cooke) for the Applicant Valentine Le Grice QC (instructed by Stewarts Law) for the Respondent
Hearing date: 24 Sep 2015
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I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
MR JUSTICE MOSTYN
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Mr Justice Mostyn:
 It is sometimes necessary for the court to make an interim order for the sale of a piece of property during the pendency of the ancillary relief proceedings. The property might be a car, a field, a picture or a horse. It might be a block of quoted shares. It might be a piece of commercial property. And it might even be the matrimonial home where the wife and children are living. That is what the husband seeks here. This is my judgment on his application.
 There are three procedural routes whereby such interim relief may be awarded. The first is by means of an order made under section 17 of the Married Women's Property Act 1882 ("MWPA"), as clarified by section 7(7) of the Matrimonial Causes (Property and Maintenance) Act 1958, which expressly confirms the power to order a sale. The second is by an order made under sections 13 and 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). This route depends on both spouses having a beneficial interest in the property. The third is under FPR 2010 rule 20.2(1)(c)(v). This provides that the court may grant as an interim remedy an order "for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly". Relevant property is defined as "property (including land) which is the subject of an application or as to which any question may arise on an application". It is the counterpart to CPR rule 25.1(1)(c)(v), which is phrased identically.
 The route that is barred is section 24A Matrimonial Causes Act 1973, which was enacted by the Matrimonial and Family Proceedings Act 1984. An order under that section can only be made on or after the making of an order for periodical payments (secured or unsecured) or lump sum under section 23, or a property adjustment order under section 24, or a legal services payment order under section 22ZA. Such an order is usually made alongside the principal order but it can be made at anytime thereafter and as such is a useful weapon in the armoury of enforcement (a facility that is often overlooked). But an order under section 24A cannot be made during the pendency of the proceedings, save as an adjunct to a legal services payment order.
 Looked at from first principles it is obvious to me that when making an order for sale the court has power to make a supplementary order requiring an occupant of the property to give vacant possession of it. It would be absurd if that were not so and the court could only make half an order. Under section 13(1) of TOLATA trustees may exclude the entitlement of a beneficiary to occupy land and this power may be exercised by the court by an order under section 14. In Miller-Smith v Miller-Smith  EWCA Civ 1297 at para 16 Wilson LJ explained that the conjunction of sections 13 and 14 "enables the court in effect to order that a beneficiary should give vacant possession of land".
 One might think that it was obvious that a supplementary order for the giving of vacant possession could be made under section 17 of MWPA. After all, the very wording of section 17 gives the court power to make such order as it thinks fit "in any question between husband and wife as to the title to or possession of property" (my emphasis). However, in Wicks v Wicks  1 FLR 470 at 483H Ward LJ stated "the power [under s.17] to order a sale of the former matrimonial home will not include a power to order possession of it". I am sure that Ward LJ did not mean this literally. I have retrieved the fourteenth edition of Rayden on Divorce, published in 1983 (before the 1984 Act - which introduced section 24A - was passed). At the time it was written the only powers of sale available in divorce proceedings were under section 17 MWPA and section 30 Law of Property Act 1925. At page 682 it states "an order made in proceedings under section 17 of the Married Women's Property Act 1882 may include a provision that one party is to give to the other possession of premises which were the subject matter of the application". It cites Short v Short  1 WLR 833, a decision of a strong Court of Appeal comprising Hodson, Willmer and Devlin LJJ. The husband was the tenant of the matrimonial home. In his absence the wife committed adultery in it. The husband applied under section 17 of MWPA for possession of the home. All three Lords Justice were abundantly clear that the court had power under section 17 to order the wife to give up possession of the property. They cited the Court of Appeal decisions of Bramwell v Bramwell  1 K.B. 370 and Stewart v Stewart  1 K.B. 507, which said so in terms. The majority (Hodson and Willmer LJJ) upheld Mr Registrar Kinsley who had, in the exercise of his discretion, adjourned the application until the conclusion of the divorce proceedings. Devlin LJ, however, was of the view that since adultery was admitted, the court had no discretion under section 17, but was bound to make an order in favour of the husband for possession ex debito justitiae.
 In Wicks v Wicks at Ward LJ continued:
"To make an order, as the judge did here, for the husband to deliver up vacant possession is to make an order restricting or terminating the rights of occupation which are conferred upon the husband by virtue of Section 1 of the Matrimonial Homes Act 1983. As Lord Hailsham of St Marylebone said in Richards -v- Richards  1 A.C. 174, 199H:-
"Where, as here, Parliament has spelt out in considerable detail what must be done in a particular class of case it is not open to litigants to bypass the special Act, nor to the courts to disregard its provisions by resorting to the earlier procedure, and thus chose to apply a different jurisprudence from that which the Act prescribes. Any other conclusion would, I believe, lead to the most serious confusion. The result of a particular application cannot depend on which of two alternative statutory provisions the applicant invokes, where one is quite general and the other deals in precise detail with the situation involved and was enacted at a time when the general provision already existed.”
The judge was not asked to consider the Matrimonial Homes Act 1983, but she should have been. The respondent should not have been required to vacate the matrimonial home save and except where the court has taken into account and balanced the factors set out in Section 1(3) of the 1983 Act."
 I wholeheartedly agree with this. It seems to me, looking at the matter from first principles, that if the court has before it an application by one spouse for an interim order for sale of a piece of property (howsoever formulated), and that piece of property is the matrimonial home occupied by the other spouse, then the court cannot order vacant possession of it (whether under section 17, TOLATA or procedural rules) without first undertaking the exercise required by section 33 of the Family Law Act 1996 (the successor to the Matrimonial Homes Act 1983). It seems to me that to do otherwise would be to by-pass specific legislation on the point and to fall foul of Lord Hailsham's proscription.
 However, in Miller-Smith v Miller-Smith the Court of Appeal reached a different conclusion in a case where the home was jointly owned and where the application for the interim sale was formulated under TOLATA. At para 23 Wilson LJ stated:
"It is not for us to question the observation [in Wicks v Wicks] that the power to order a sale under s.17 of the Act of 1882 does not include a collateral power to order that vacant possession of it be given on or for the purposes of the sale. What is clear, indeed accepted by Mr Wilson, is that under s.13 of TOLATA there is power in effect to order that vacant possession of a property be given, whether on sale or otherwise. So, to the extent that Wicks is the peg on which Mr Wilson seeks to hang his argument that the husband needs to satisfy the requirements of s.33 of the Act of 1996, being the successor to s.1 of the Act of 1983, the peg cannot hold the argument and breaks from the wall at once. One may say, broadly, that it would be surprising if an order that in effect a spouse should give vacant possession of a matrimonial home under TOLATA were to be made in circumstances in which the applicant could not have secured an occupation order. But I have already stressed the width of the mandatory enquiry under TOLATA; and Mr Wilson's submission that the recorder was required in law to conclude that an occupation order should be made against the wife is in my view invalid. Nor does Mr Wilson wrestle convincingly with the recorder's further observation that, had such a conclusion been requisite, it would have been apt."
 It seems to me that this view (that if the claim for interim relief is formulated under TOLATA then the exercise under section 33 of the 1996 Act can be bypassed) is founded on an incorrect concession by counsel (as Mr Le Grice QC rightly, in my view, submits) and the acceptance of the incorrect view that there is in fact no power under section 17 to order vacant possession, in contrast to an application under TOLATA. It is clear that Ward LJ did not mean to say that there was literally no power to order a wife to vacant possession under section 17. If, as it seems to me, the procedural powers under the MWPA and TOLATA had been seen to be identical then I believe that Ward LJ's view would have been followed (indeed had to be followed) in Miller-Smith v Miller-Smith.
 While legally interesting my respectful difference with the view of Wilson LJ is not likely to be of much more than academic interest given his statement that "it would be surprising if an order that in effect a spouse should give vacant possession of a matrimonial home under TOLATA were to be made in circumstances in which the applicant could not have secured an occupation order". In this case both counsel are agreed that an order for an interim sale cannot be made unless I am satisfied that the wife's home rights should be terminated pursuant to an order under section 33(3)(e) of the 1996 Act applying the evaluative factors in section 33(6).
 And so I turn to this case. The husband and wife married in London in 1998. He is English and she is American, hailing from California. They have a son aged 14 who attends a top public school in this country, and a daughter aged 10 who attends a well known London prep school. The combined fees for these schools amount to £56,000 annually. In 2003 the parties and their son moved to California from this country and their daughter was born there two years later. In 2007 the family returned here and they have lived in London ever since.
 On the return to this country the family lived in rented accommodation. In 2011 they resolved to buy a home and in October of the following year the matrimonial home was purchased in North London in the husband's sole name. That home was also to be a home for the husband's mother, a lady now aged 82, who would live in a refurbished annex or cottage at the bottom of the garden. A large mortgage of over £1m was raised. The husband's mother contributed £517,500 to the project. This sum was not given to the husband. Rather, it was given to the husband's sister who then lent it the husband under a formal loan agreement which was executed on 26 July 2013. That provides for repayment within 5 days of any future sale of the property. The husband, who gave oral evidence to me, explained that the rationale for this arrangement was that he would have the use of the money for as long as the house was unsold (which could have been for many years) but ultimately the sum would revert to his sister. Thus he his mother and his sister considered that a fair balance had been struck.
 Following the purchase extensive works were done. The husband told me that from October 2012 they spent "£200,000 plus". In addition the wife set up a small business at that time and £50,000 to £60,000 was invested in it. That business has since failed and will be closed down. In addition to these capital expenditures it is obvious that the family was living and spending at a very high rate, as well as paying school fees.
 The sources of this overall expenditure were the husband's annual income (£284,000 gross (£163,000 net) for the year ended 5 April 2014) together with further funds provided by the husband's mother of £194,970 (provided as to £127,500 in October 2012 and £67,470 in April 2013) together with a further commercial loan of £100,000 taken out in April 2014. Some funds were moved back to the husband's mother for her to hold for the purposes of paying some of the school fees.
 The parties separated in August 2014, the husband moving into a rented flat. At that point all the monies mentioned above had been spent (or in the case of school fees earmarked for that purpose). Indeed they had even spent the money that the husband should have put aside to pay his tax. Thus in February 2015 the husband had to borrow £45,000 from his business partner to pay taxes and in July 2015 £38,000 from his sister for the same purpose. Further, since the separation the husband's rent of £2,100 per month has been paid by a friend of his, and that friend has also provided the husband with a car. Other sums have been lent by that friend and repaid by the husband – the documents show that in the year the husband has made a net payment to his friend of £6,900. In the year since the separation it appears that the husband's friend has either given or lent the husband the net sum of £18,300 ((£2,100 x 12) - £6900). Further still, the husband's employer has lent him £43,262 on top of his earnings. That is required to be repaid by the end of this year.
 In his oral evidence, under stern cross-examination by Mr Le Grice QC, the husband admitted that in the year since the separation a large sum has not been specifically accounted for. The figures are as follows:
Husband's gross salary
Advance from employers
net payment by husband's friend
Mortgage on home
sums paid to wife
bills and other expenses on home
Husband rent (paid by friend)
Husband bills at his flat
school fees paid
legal costs paid by husband
It is to be noted that the husband's living expenses are not reckoned in the above calculation.
 Mr Le Grice QC argues that that there are only three possible explanations for this shortfall. Either (1) the husband has hidden a large part of it; or (2) he has deliberately and strategically spent it in order to force the court's hand to achieve the relief which he seeks; or (3) he has recklessly and wantonly dissipated it.
 In his evidence the husband strenuously denied that he has squirreled away any part of this sum of £158,000. He did agree, however, that he had recklessly spent a large part of it. He has had three expensive holidays with the children in the period in Val d'Isère, New York and the South of France. He points out that the wife has taken the children twice to Los Angeles in the period and that the cost of that came out of the sum. What is remarkable however is that the husband did not put any part of it aside to pay income tax with the result that he owes £45,869 payable on 31 December 2015, £60,593 on 31 January 2016 and £60,593 on 31 July 2016. The husband asserts that there is no free money to pay these taxes, and this is a main reason why the home has to be sold.
 In addition the parties have incurred legal costs of £321,000, of which only £11,000 (noted above) has been paid. The wife has incurred costs of £181,000; the husband £140,000. £310,000 is outstanding. The wife has "paid" costs to her solicitors of £16,510 but this derived from a litigation loan, so all that does it to alter the identity of the costs creditor. These costs have been incurred before the ancillary relief proceedings have even been started. I will now revert to the factual history to explain how these very large costs have been run up.
 Following the separation the parties agreed that the wife and children could in principle relocate to Los Angeles but the detail was almost entirely absent and the plan was very poorly formulated. In the early part of this year the father repented of this agreement. This led to the mother issuing on 8 May 2015 an application for a specific issue order in relation to their son's schooling in California and on 1 June 2015 an application for leave to relocate both children to California. Those applications were heard by Deputy District Judge Allen on 7 and 8 August 2015. She dismissed the mother's applications on the basis that her plans were far too imprecise. However, she did express the view, perhaps curiously, that in about four years' time it would be in the children's interests to relocate to California. That strikes me as a very risky hostage to fortune: how could anyone peer into the future and make such a proleptic assessment so far ahead? The danger of making pronouncements of this nature is well illustrated by the wife's stance in reaction. She now says "it is of course fantastic to know that we will be returning to California at some point in the next four years" and "our relocation to California is a question of when not if", and it is on that basis that she says that the home, which she had previously agreed to be sold, should not be sold until the certainty of her relocation eventuates.
 The home was in fact placed on the market in October 2014 with the wife's agreement. It was taken off the market at Christmas and remarketed with Winkworths in March 2015, again with the wife's agreement. The wife issued her relocation application on 1 June 2015. She says in her witness statement that she only agreed to the house being marketed on the basis that she would be relocating to Los Angeles, but no such conditionality was ever expressed by her. In June 2015 a Mrs T made an offer of £2.47m. On 13 July 2015 the wife registered a Homes Rights Notice at the Land Registry. However, on 18 July 2015 she wrote to the agent saying that she was "on board" with the offer. On 20 July 2015 she wrote to the agent saying that this was the "perfect buyer" paying "the best price for our time frame". On 29 July 2015 her solicitors wrote to the husband's solicitors requiring that the proceeds of sale be placed in an escrow account. No mention was made of a condition that the sale would only be allowed if the wife succeeded on her relocation application which was to be heard in a few days time.
 At the hearing on 7 and 8 August 2015 the agreement to sell was presented to the court as a "given" whatever the result of the application. That is clear from para 40 of the judgment. There is not the faintest suggestion in the correspondence prior to the judgment or in the judgment itself that the wife's agreement to sell was conditional on her succeeding.
 The judgment was given on 8 August. On 4 September the wife withdrew her consent to the sale. In her witness statement she stated "whilst I fully accepted that I was aware that the court could refuse my application, I never engaged with that outcome … I did not contemplate what the reality of life would be for us were my application to be dismissed". I do not accept that.
 On 9 September 2015 the husband issued his application. It is framed as an application that the wife's rights notice be removed under para 1 of schedule 4 to the 1996 Act. It should more accurately have asked for a termination of her rights of occupation under section 33 and for a supplementary order under para 1 of schedule 4 removing the rights notice. It also seeks that the wife gives up vacant possession on sale. It does not expressly seek an order for sale since as sole owner the husband has that right anyway.
 Mrs T has been discouraged by the developments and on 10 September announced that the sale would not be proceeding. However she has since signified that she remains interested but she has had to rent property for herself for 6 months. It is possible that in the light of that it will have to be agreed that the price is reduced.
 On 9 September the estate agent wrote to say that this property had been fully tested on the market and the offer of £2.47m was the "best possible". He stated "we really must do everything to sell the property to the current offer".
 I now set out the presently realisable assets and the actual liabilities:
Value of home
loan from sister
unpaid legal costs
tax due 31 December 2015
tax due 31 January 2016
tax due 31 July 2016
Debt to business partner for tax
Debt to sister for tax
loan from employer
credit card debts
I have ignored the debt due to the husband's friend of £18,300 as I am not satisfied that this is in fact repayable.
 If Mrs T in fact demands a price reduction of, say, £100,000 it can be seen that there is virtually no money left.
 If the present position continues then the income and outgoings are as follows:
Husband net earnings
mortgage on home
bills and other expenses on home
H bills at his flat
The parties are in a position of serious revenue deficit before a penny has been spent on meeting their day to day living expenses or those of the children. Even if the expenses on home were reduced significantly there would still be a shortfall. If the position continues then debts will mount and bankruptcy looms.
 Notwithstanding the stark reality of these figures the wife persists in her resistance to a sale. Mr Le Grice suggests that it may yet be found that the husband has secreted a large part of the unaccounted sum of £158,000. I think not. I believe it has been spent, in large measure recklessly. He argues that the debts to the business partner and to the sister to pay tax can safely be regarded as soft and negotiable. Yet it is clear that those sums were lent on the clear understanding that they would be repaid when the property was sold. Mr Le Grice is on stronger ground in relation to the debt to the sister of £517,500 given that in the relocation proceedings she stated that she would make available £250,000 from it for school fees and later has indicated that the whole sum would be made available to the husband provided he used it to house their mother as well as himself. The mother's position is very unhappy. She remains living at the home with the wife and describes her situation as being "like a prisoner in my own home".
 The fact remains however that the debt to the sister is a real one.
 Mr Le Grice suggests that the solicitors can wait for years to be repaid the costs owed to them. But the husband's solicitors have taken an equitable charge over the home in relation to their costs and have held their hand in the clear expectation that, as agreed, the house would be sold. And none of these submissions address the revenue shortfall.
 I am very critical of both parties. The husband's reckless and irresponsible conduct in spending such a large sum in the year of separation is indefensible and there will have to be reflection of that when the parties come to settle the ancillary relief claim (which surely must be settled very soon – it cannot possibly be fought out). The wife is to be criticised for reneging on her clear agreement to sell and then sticking her head in the sand like an ostrich. Her stance is summed up by her statement in her witness statement "I believe he will easily be able to access funds from third parties or from within the business as and when he needs them". It is completely unrealistic. Mr Le Grice wisely did not press me in this regard.
 Under section 33(6) of the 1996 Act I am bidden to take into account the following factors:
(a) the housing needs and housing resources of each of the parties and of any relevant child; (b) the financial resources of each of the parties; (c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and (d) the conduct of the parties in relation to each other and otherwise.
 There is no alternative but that the home must be sold as soon as possible, and for this purpose the wife's home rights must be terminated. Only in this way can the pressing debts, most importantly to HMRC, be paid and the revenue deficit eliminated. The future housing of the parties will have to be in rented accommodation. I have seen particulars of 3 bedroom flats in reasonable areas costing around £2,500 per month. The husband's net income is just sufficient to pay for two flats as well as to pay the school fees and to support himself the wife and the children. The effect of my order is to impose financial sanity on this family. That is needed for the health, safety and well-being of the parties and their children as the alternative is insolvency with all the psychological damage that that entails.
 I therefore make an order that the wife's rights of occupation be terminated and that her rights notice be vacated. I make a positive order for the sale of the home under FPR rule 20.2(1)(c)(v). I am wholly satisfied that it is desirable to sell it quickly, for the very good reasons which I have given. The wife must give vacant possession on completion of the sale.
 When I adjourned I asked the parties to serve and file a written statement of the terms that should apply following a sale as regards maintenance for the wife and retention of the residue (if any). I stated that I expected negotiations to take place and that I would be disappointed if the parties, each represented by senior experienced counsel, could not agree matters. I will however rule on them if agreement is not reached.