Divorcing wife unable to force sale of matrimonial home

Usually, in financial remedy proceedings, the decision about whether or not to sell the family home (or any other property) will not be made until the final hearing. However, there could be very good reasons for a party wanting to do so prior to the final hearing. This could be, for example, if the parties can no longer afford the mortgage repayments and the property will be repossessed if it is not sold.  

If one party refuses to agree to an early sale in such circumstances, or is perhaps preventing a sale by refusing to accept that the price must be reduced in order to achieve a swift sale, can the court order an interim sale?

In the recent case of RA v KS (2023) EWFC 102, the wife had applied under the Married Women’s Property Act 1882 for an interim order for the sale of, and vacant possession of, the home in which both she and her husband had a legal and beneficial interest. The issue was whether the court’s jurisdiction to order vacant possession was limited by the Family Law Act 1996.

The judge hearing the case determined that on an application for an interim order for sale of a property, the court cannot order vacant possession, if the respondent has a legal and beneficial interest in the property.

The judge concluded:

• If the respondent to an application has a legal and beneficial interest in the property, the court can prohibit, suspend or restrict their right to occupy the property. However, the court cannot permanently extinguish this right, and therefore cannot order vacant possession.

• If the respondent’s right to occupy arises solely from matrimonial home rights (a notice filed with HM Land Registry to protect a non- legal owner spouse’s rights of occupation), then their right to occupy can be extinguished. The court did not have jurisdiction to extinguish the husband’s right of occupation and order vacant possession.

The judge was clear that on any application for an interim order for sale, the applicant must specify clearly within their application, their case regarding the respondent’s right of occupation.

The wife’s application in this case therefore failed and she was ordered to pay the husband’s costs in connection with the application.

If you would like any further information or advice in relation to the issues addressed above, please do not hesitate to contact Sadie Glover, Partner in our Family Team in Berkhamsted on 01442 872 311 or [email protected]