Introduction
Contrary to the wording of s.24A of the Matrimonial Causes Act (“MCA”), the court can make interim orders for sale before the conclusion of financial remedy proceedings in limited circumstances. However, there are a number of factors, procedural and case specific, which must be considered to determine whether an application has any prospect of success.
Limitations of S24A MCA
Section 24A MCA expressly empowers the court to order a sale of property (s.24A(1)), however, the order cannot take effect unless the divorce or nullity has been made final (s.24A(3)). This is, save for one singular exception; when a Legal Services Payment Order (“LSPO”) application is made under s.22ZA, an application for an order for sale may be made to bolster the primary interim application.
Why might an interim order for sale be necessary?
There are a number of reasons why interim orders for sale might be both necessary and attractive. Parties embroiled in protracted ancillary relief proceedings might not yet have an FDR or final hearing in sight, and liquid assets may be limited. Practically speaking, the case law tells us there needs to be a good reason to order a sale on an interim basis, such as the need to pay pressing debts or legal fees. Factually, the former matrimonial home (“FMH”) might be the only asset available for distribution, and both parties cannot continue to litigate without funds being made available from it. This can be distinguished from an interim order for sale in support of a LSPO application, which aims to assist the financially weaker party.
Difficulties may arise when the residing spouse refuses to move out. At best there may be a genuine housing need, and at worst they might be attempting to frustrate the process by non-engagement with a formerly agreed sale. In these instances, the court is required to consider not only whether an interim order for sale can be made, but also whether the property can be delivered up with vacant possession.
The Routes
Mostyn J in BR v VT [2015] EWHC 2727 (Fam) says there are 3 routes by which interim orders for sale can be made;
- Through section 17 of the Married Women’s Property Act 1882 (“MWPA”), as clarified by section 7(7) of the Matrimonial Causes (Property and Maintenance) Act 1958; or
- An order made under sections 13 and 14 of the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”); or
- Under The Family Procedure Rules (“FPR”) 2010 rule 20.2(1)(c)(v).
FPR
The court can make an interim order “for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly“. Relevant property is defined as “property (including land) which is the subject of an application or as to which any question may arise on an application“.
It should be noted that there is dispute at High Court level as to whether the route under the FPR creates jurisdiction to make an interim order for sale at all; Mostyn J in BR v VT says it does, but Cobb J in WS v HS [2018] EWFC 11 disagrees. The issue was considered further by Cobb J in S v S [2018] EWFC 11 (from paragraph 38), who says it “will not, and cannot, engage a jurisdiction which does not exist” (paragraph 43) and “even if, contrary to my conclusion, FPR r 20.2 operated to give a court a free-standing power to order sale…it would not have given the court the power to order the delivery up of vacant possession” (paragraph 51).
TOLATA
This route depends on both spouses having a beneficial interest in the property;
At paragraph 2 of BR v VT, Mostyn states:
Under section 13(1) of TOLATA “trustees may exclude the entitlement of a beneficiary to occupy land and this power may be exercised by the court by an order under section 14.” In Miller-Smith v Miller-Smith [2009] EWCA Civ 1297 at para 16 Wilson LJ explained that the conjunction of sections 13 and 14 “enables the court in effect to order that a beneficiary should give vacant possession of land”.
MWPA
Section 17 of the MWPA expressly confirms the power to order a sale;
“In any question between husband and wife as to the title to or possession of property, either party … may apply…to any judge … according as such property is in England … and the judge … may make such order with respect to the property in dispute, and as to the costs of and consequent on the application as he thinks fit, or may direct such application to stand over from time to time, and any inquiry touching the matters in question to be made in such manner as he shall think fit”
However, despite the FPR suggesting the court can order a sale for “any…good reason”, that TOLATA “enables the court in effect to order that a beneficiary should give vacant possession of land”, and that the MWPA maintains a judge can make any order “as he shall think fit”, Mostyn says the issue of vacant possession requires further consideration.
The argument here is that to make an order for vacant possession is to make an order terminating the rights of occupation of one party. As a result, as prescribed in BR v VT, Mostyn says that the application should be supported by undertaking the exercise required by section 33 of the Family Law Act 1996 (“FLA”); for the making of an Occupation Order (1).
Family Law Act 1996
Whilst this approach may seem like a common sense one, it is not without issues. S33 covers those who have legal and beneficial interest a property (s33(a)(i)), or those who have home rights only (s33(a)(ii)), but the powers available to the court are different depending on the type of interest. Where a respondent has home rights only, ‘and the applicant is the other spouse or civil partner, [the court has the power to] restrict or terminate those rights’ (s33(3)(e)). However, for respondents with legal and beneficial interest, the court can only ‘prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling-house’ (s33(3)(d).
On the face of it, it therefore seems that where one party owns a property in their sole name, and the other has home rights only, the court can make an interim order for sale with vacant possession by terminating the home rights. The case law in this area is fairly settled.
However, where the property is held in joint names, or rather the parties both have legal and beneficial interest, the court can only restrict those rights, not permanently terminate them. In RA v KS [2023] EWFC 102, Recorder Allen, KC came to this exact conclusion and refused to order a sale for a jointly owned property, not the FMH, of which H was in occupation.
Jointly Owned Property
In Miller Smith v Miller Smith [2009] EWCA Civ 1297, the court dealt with W’s appeal against an interim order for sale with vacant possession under s.14 TOLATA. The property was the FMH, of which H and W were joint owners, where W was still living. W argued that the order was premature pending the outcome of ancillary relief proceedings. Wilson LJ agreed that whilst it is more desirable to resolve at the final stage, it looked unlikely that W would have achieved a transfer into her sole name at the conclusion (inter alia), and the appeal was dismissed. The Court of Appeal therefore seems to create a remedy for joint owners under TOLATA.
Whether s33 FLA should be subsequently considered for joint owners under TOLATA is another point of contention. Wilson LJ in Miller Smith confirmed that TOLATA contains an inherent power to order a sale with vacant possession (paragraph 16), and nonetheless, s15 TOLATA requires the court to undertake an evaluative exercise of matters to which the court is to have regard in determining an applications under s14 (paragraph 17). Mostyn J in BR v VT disagrees with Miller Smith, and suggests that whichever route is pursued, the evaluative exercise in s33 should be undertaken, even though, as noted by Recorder Allen in RA v KS, BR v VT dealt with sole ownership and “fail[s] to provide guidance where the respondent has a proprietary interest”. Further, it should follow that joint owners using TOLATA would inevitably become caught in the trap of s33(3)(d) FLA, which cannot permanently terminate the rights of a party with legal and beneficial interest.
Whilst it is not fully clear on what basis Mostyn’s differs, it is now trite law that all applications must be supported by consideration of s33(6) factors. Cobb J (WS v HS at paragraph 59) agrees (2) that whilst the court in Miller Smith had felt able to bypass the s33 exercise for an application under TOLATA, there remains caution against recommending this approach. Cobb J confirms the necessity of considering both threshold and discretionary criteria in matrimonial proceedings, as “by an order under TOLATA…the court lays down only one piece of the jigsaw, namely that the home be sold, without its being able to survey the whole picture by laying down the others”. He makes clear that there are dangers in viewing applications in isolation of the holistic s25 MCA factors, and “courts will be slow to take any interim step which may pre-empt the exercise of the wide discretion at final hearing; it is only then that all the pieces of the ‘jigsaw’ come together.” (paragraph 61).
Conclusions
Ostensibly, it is arguable that the MWPA and TOLATA provide the safest routes for those seeking interim orders for sale with vacant possession, at least until the FPR dispute is resolved. The MWPA, and the respective supporting case law, offers promise for sole owners seeking to evict a spouse with home rights, and an application under TOLATA is the better option for joint owners, although not without difficulties where the High Court and Court of Appeal disagree. Despite the differences between Mostyn and Cobb, practitioners may take solace in the available jurisprudence, which offers scope to argue your case no matter its facts. What is crucial, however, is that “it is important for the applicant for an order to assert his/her case specifically and clearly as to the respondent’s ‘rights’” (WS v HS at paragraph 53).
Case Law
- BR v VT [2015] EWHC 2727 (Fam)
- WS v HS [2018] EWFC 11
- S v S [2018] EWFC 11
- RA v KS [2023] EWFC 102
- Miller Smith v Miller Smith [2009] EWCA Civ 1297
1. Practitioners should note the different sections of Part IV of the FLA regarding Occupation Orders, as other sections may be more relevant to their application. For example, section 35 relates to former spouses with an interest where Decree Absolute or Final Order has been pronounced, and section 36 relates to cohabitees. The evaluative criteria and the balance of harm test remain the same, but the powers available to the court do not.
2. There is more disagreement between Cobb J and Mostyn J as to whether the main application should be supported by a formal FLA application. Mostyn J says that the court could make a ‘supplementary order under para 1 of schedule 4 removing the rights notice’ (paragraph 24). Cobb J in WS v HS says that owing to the draconian nature of occupation orders, reserved for exceptional cases (paragraph 53(ii)), it is best practice to make a formal application under the FLA. Further, Cobb J argues that the distinctly procedural FPR route would need to attach to an actual application (paragraph 54).
Sophie George-Moore
4th November 2024
