Family analysis: Clare Williams, associate at JMW Solicitors LLP, examines the limited scope for the variation of capital orders, and diverging judicial views on the jurisdiction of the court to make an interim order for sale, in the case of SR v HR  EWHC 606 (Fam),  All ER (D) 176 (Mar) where an added complication was the bankruptcy of the husband.
What are the practical implications of the judgment?
This case should remind us that there are few, if any, back door routes to the variation of a capital order made in financial remedy proceedings.
It is also an object lesson in advising clients about the risks of pursuing or defending an appeal when costs do indeed follow the event. The wife, who, like the husband, appeared in person, defended the appeal in circumstances that really did appear to be hopeless. She ended up paying £10,000 costs to the intervening trustee in bankruptcy and disbursements of £866 to the husband.
It is perhaps understandable that the wife found it difficult to turn her back on an order made by a circuit judge which was manifestly in her favour, even if it was doubly doomed by the fact of it being made without jurisdiction and after the date of the husband’s bankruptcy.
What is perhaps most interesting about this judgment is the footnote, in which the Family Division judge, Mostyn J, makes reference to the difference in opinion between himself in BR v VT
 EWHC 2727 (Fam),  All ER (D) 13 (Oct), and Cobb J in WS v HS
 EWFC 11,  All ER (D) 158 (Feb). In a nutshell, Mostyn J maintained that an interim order for sale could be made in financial remedy proceedings, where the circumstances justified it, pursuant to the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, 20.2(1)(c)(v). Cobb J disagreed and found that this was merely a procedural provision and could only be utilised where there was an underlying statutory basis for an interim order for sale, either under s 17 of the Married Women’s Property Act 1882 (MWPA 1882) or s 14 of the Trustees of Land and Appointment of Trustees Act 1996 (TOLATA 1996). Mostyn J conceded that until the matter could be resolved by a higher court, such applications should be made under MWPA 1882, or presumably TOLATA 1996 in co-ownership cases.