While recent decisions clearly show that the family court has the power to order the interim sale of a property, how that power can be exercised remains in dispute.

Andrew Newbury

Andrew Newbury

Historical position

In Wicks v Wicks [1998] 1 FLR 470, the Court of Appeal held that the court had no power to order an interim sale pursuant to procedural rules concluding: ‘If the substantive law laid down by the Matrimonial Causes Act 1973 does not permit that [an interim sale] to happen, then the court has no inherent jurisdiction to do that which parliament has not granted it the power to do.’

Subsequently, in the Court of Appeal decision of Miller Smith v Miller Smith [2009] EWCA Civ 1297, the Court of Appeal held that a party was entitled to pursue an order for the interim sale of property under the Trusts of Land and Appointment of Trustees Act 1996, with there being no power for such an interim order under the Matrimonial Causes Act.

Judgment in BR v VT

In BR v VT [2015] EWHC 2727 (Fam), Mostyn J contemplated the three routes to achieve an interim sale under rule 20 of the FPR 2010, TOLATA 1996 and section 17 of the Married Women’s Property Act 1882.

Mostyn J concluded that an interim order for sale could be made under rule 20.2 of the FPR 2010, MWPA or TOLATA but that none of them provided for the grant of vacant possession. He held that the court can only order vacant possession of the property, after carrying out the exercise required by section 33 of the Family Law Act 1996. That would involve applying the balance of harm test under section 33(6).

Judgment in WS v HS

In the recent decision in WS v HS [2018] EWFC 11, Cobb J considered the case law and the approach adopted by Mostyn J in BR v VT. In WS v HS, the family home had been on the market for about two years, with an offer eventually being made at £65,000 below the asking price. The husband wished to accept the offer, but the wife did not. The husband therefore brought an application for an interim sale of the property.

Cobb J considered the authorities, the substantive law and the procedural law, and concluded as follows:

(a) The only substantive claim before the court by the husband was the one made under sections 23 and 24 of the Matrimonial Causes Act 1973. Such provisions specifically bar the interim relief claimed.

(b) An interim order for sale under section 24A of the Matrimonial Causes Act 1973 is only available to give effect to a Legal Services Payment Order.

(c) Given that neither section 24 nor 24A of the Matrimonial Causes Act 1973 enable an interim order for sale to be made, Cobb J concluded that an application brought under a generic procedural rule, such as rule 20 of the FPR 2010 cannot deliver a result which is specifically prohibited within the substantive claim before the court. He therefore disagreed with the approach adopted by Mostyn J in BR v VT.

(d) Cobb J acknowledged that a power to make interim orders does lie within both MWPA 1882 and TOLATA 1996, but there were no applications under those statutes brought by the husband before the court.

(e) Cobb J was also satisfied that applications under either statute would provide the court with the inherent power for the court to order vacant possession of the property, therefore disagreeing with Mostyn J on that point.

(f) Cobb J stated that formal applications under either statute must be before the court before an interim order for sale can be entertained. Given the implications of the relief sought, it would not be right for an application of this nature to be deemed to have been made or to be inferred.

(g) Once an application is properly brought before the court under either MWPA or TOLATA, then, as to how the court exercises its powers, rule 20 of the FPR 2010 comes into play.

(h) Cobb J noted that rule 20.2(1)(c)(v) contemplates a two-stage test as follows:

i. Is the property ‘perishable’ or is there any other ‘good reason’ for making the order (‘the threshold stage’)?; and, if so,

ii. How should the court exercise its discretion (‘the discretionary stage’)?

Judgment in SR V HR

Within a month of Cobb J giving his decision in WS v HS, Mostyn J gave judgment in SR v HR [2018] EWHC 606 (Fam). As a footnote to his judgment, Mostyn J confirmed that section 24A of the Matrimonial Causes Act 1973 cannot be used as an interim measure, although he stated that there was a ‘regrettable difference of opinion’ between himself and Cobb J as to whether an interim order for sale can be made under rule 20.2 of the FPR 2010. Mostyn J stated that he firmly and respectfully maintained his view set out in BR v VT.

Mostyn J stated that an order for sale of property is essentially procedural; of itself it does not alter proprietary rights. He did however conclude by proposing that until the matter has been resolved by a higher court, applications of an interim nature are made under section 17 of the MWPA 1882. Such an application is to be made using the short form procedure under part 18 of the FPR 2010.

Andrew Newbury is a partner at Hall Brown Family Law