Family Law

Family law analysis: Sheena Cassidy, barrister and deputy head of 3PB, examines the decision of Cobb J in WS v HS [2018] EWFC 11, [2018] All ER (D) 158 (Feb) which considers the power of the family courts to make an interim order for sale in circumstances where s 22ZA of the Matrimonial Causes Act 1973 (MCA 1973) does not apply.

What was the background to this case?

The parties separated in 2016. They had three children, two of whom remained in the family home. The wife was a home-maker, having previously had a successful career. The husband, who at one time had a sizeable income, was now unemployed and in receipt of job seeker’s allowance. The parties had previously agreed to sell the family home. It had been on the market for approximately two years, despite the parties having dropped the price. An offer to purchase was made which the husband wanted to accept. The wife did not agree, partly as she felt that the offer was too low, partly because she now wanted to delay a sale for 18 months or more until one of the parties’ children had completed her A levels. The husband issued an application for financial relief in Form A. Some ten days later, the husband issued an application under Pt 18 of the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, seeking an interim order for sale. The application form did not indicate the jurisdictional basis for the order sought. At the hearing, the wife’s counsel conceded that FPR 2010, SI 2010/2955, 20.2(1)(c)(v) endowed the court with power to make such an order. The district judge granted the application and the wife appealed.

What did the court decide?

Cobb J allowed the wife’s appeal. He disagreed with Mostyn J’s view in  BR v VT [2015] EWHC 2727 (Fam), [2016] 2 FLR 519, [2016] 2 FLR 519, that FPR 2010, SI 2010/2955, 20.2(1)(c)(v) created a stand-alone jurisdiction for the court to order an interim sale of property. The only substantive application before the court was the husband’s Form A, seeking financial relief. MCA 1973, s 24A provides that the court can make an order for sale when it makes an order for substantive relief pursuant to MCA 1973, ss 23–24. Such orders would only be made at the conclusion of the standalone application. Cobb J was of the view that FPR 2010, SI 2010/2955, 20.1(1)(c)(v) was procedural rather than substantive in effect.

The court could, however, make an interim order for sale pursuant to ss 13 and 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) or s 17 of the Married Women’s Property Act 1882 (MWPA 1882), but the husband had not made an application under either of those enactments. In the circumstances, as there was no substantive application before the court that permitted an interim sale – Cobb J was not willing to deem such an application.

The wife’s counsel argued that no application had been made under s 33 of the Family Law Act 1996 (FLA 1996) to terminate the wife’s right to occupy the property. However, given that she was a joint legal owner, the most that could have been done would be to ‘prohibit, suspend or restrict’ her rights, per FLA 1996, s 33(3)(d)—this would not have given vacant possession for a sale.

Cobb J considered that even if he was wrong about the impact of FPR 2010, SI 2010/2955, 20.2(1)(c)(v) and it did create a standalone power to order an interim sale, the rule did not give the court the power to order delivery up of vacant possession. While in BR v VT, Mostyn J had been in a position to conduct a FLA 1996, s 33(6) exercise (as the wife in that case had weaker rights pursuant to FLA 1996, s 33(3)(e)), on the facts of this case, FLA 1996 would not have been a route to providing vacant possession.

He was, however, of the view that the court would have power to order vacant possession should it make an order for sale pursuant to MWPA 1882, s 17 or TOLATA 1996, s 14 and agreed with Mostyn J that comments of the Court of Appeal in Wicks v Wicks [1998] 1 FLR 470, [1998] 1 All ER 977 suggesting otherwise (as regards MWPA 1882) were questionable.

What are the practical implications of this case?

The ruling casts into doubt whether FPR 2010, SI 2010/2955, 20.2(1)(c)(v) creates a stand-alone jurisdiction for the court to order an interim sale. Even if it does, if one of the parties occupies the property, careful thought needs to be given to how vacant possession can be obtained. Where a property is in joint names, FLA 1996 will not help. Until the higher courts resolve the question of the status of FPR 2010, SI 2010/2955, 20.2(1)(c)(v), it would be prudent, where an interim sale is sought, to make an application either under MWPA 1882 or TOLATA 1996 in addition.

Interviewed by Emily Meller.