WS v HS [2018] EWFC 11

Facts :

  • The parties were married for 25 years. They had three children, one of which attended a local private day school near the parties’ home.
  • W was a homemaker during the marriage. H was the CEO of a company earning c. £250,000 pa until the company went into liquidation and H became unemployed.
  • Upon separation W remained at the Former Matrimonial Home (‘FMH’) with the children and H moved into the parties’ holiday home.
  • The FMH was put on the market in 2016 for £950,000. In Autumn 2017, the parties reduced the asking price to £850,000 and received an offer for £785,000. H wished to accept the offer while W did not.
  • H issued financial remedy proceedings and made an application under Part 18 for an interim order for sale of the FMH. W resisted the application arguing that the timing and price of sale were inappropriate.
  • At first instance, the District Judge ordered an interim order sale pursuant to FPR r.20(1)(c)(v), W’s counsel having conceded that the court had jurisdiction to make such an order under this provision. W appealed.


Held, granting permission to appeal and allowing the appeal:

  • The interim order for sale was set aside. The court’s jurisdiction to make an interim order for sale did not arise from FPR r.20(2)(c)(v).
  • The court is empowered to make an interim order for sale under the following provisions of primary legislation: Section 24A in order to give effect to a legal services payment order under section 22ZA MCA 1973; Section 17 Married Women Property Act 1882; or Sections 13 and 14 of the Trusts of Land and Appointment of Trustees Act 1996.
  • In order to make an order effectively giving vacant possession under any of these routes, the court should nonetheless undertake a section 33(6) Family Law Act 1996 ‘exercise’ to establish whether property rights should properly be brought to an end (citing in approval Mostyn J. in BR v VT (2015) EWHC 2727 (Fam) at [7]).
  • The fact that an order may be both practical and convenient will not and cannot engage a jurisdiction which does not exist (Wicks v. Wicks [1998] 1 FLR 470 (CA), Miller Smith v. Miller Smith [2009] EWCA Civ 1297; Joy v Joy [2015] EWHC 455 Fam; and Goyal v. Goyal [2016] EWCA Civ 792 considered).
  • The only substantive claim before the court was one made under section 23 and 24 of the MCA 1973, which specifically barred the interim relief sought by H. H’s application for interim sale, brought under a generic procedural rule, could not deliver a result which was expressly prohibited by MCA 1973.
  • It was open to H to make an application for an interim order for sale under MWPA 1882 or TOLATA 1996. However, such an application should be made formally.
  • Even if the court did have jurisdiction pursuant to FPR r.20.2(1)(c)(v), it did not have the power to order the delivery up of vacant possession. The judge had failed to undertake the s.33(6) FLA 1996 ‘exercise’ but even if he had, this could not terminate W’s occupation rights, which arose from her legal and beneficial interest in the FMH.
  • An application under FPR r.20.2(1)(c)(v) requires a two-stage test to establish (a) that there is a good reason for an interim sale and (b) that it is right in all the circumstances for the court to exercise its discretion. The judge had failed to apply this test in the instant case.