BR v VT
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 02 October 2015 |
| Neutral Citation | [2015] EWHC 2727 (Fam) |
| Court | Family Division |
| Docket Number | Case No: ZC14D02709 |
| Date | 02 October 2015 |
[2015] EWHC 2727 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: ZC14D02709
Michael Glaser (instructed by Russell-Cooke) for the Applicant
Valentine Le Grice QC (instructed by Stewarts Law) for the Respondent
Hearing date: 24 Sep 2015
It is sometimes necessary for the court to make an interim order for the sale of a piece of property during the pendency of the ancillary relief proceedings. The property might be a car, a field, a picture or a horse. It might be a block of quoted shares. It might be a piece of commercial property. And it might even be the matrimonial home where the wife and children are living. That is what the husband seeks here. This is my judgment on his application.
There are three procedural routes whereby such interim relief may be awarded. The first is by means of an order made under 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, which expressly confirms the power to order a sale. The second is by an order made under sections 13 and 14 of the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA). This route depends on both spouses having a beneficial interest in the property. The third is under FPR 2010 rule 20.2(1)(c)(v). This provides that the court may grant as an interim remedy an 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 is the counterpart to CPR rule 25.1(1)(c)(v), which is phrased identically.
The route that is barred is section 24A Matrimonial Causes Act 1973, which was enacted by the Matrimonial and Family Proceedings Act 1984. An order under that section can only be made on or after the making of an order for periodical payments (secured or unsecured) or lump sum under section 23, or a property adjustment order under section 24, or a legal services payment order under section 22ZA. Such an order is usually made alongside the principal order but it can be made at anytime thereafter and as such is a useful weapon in the armoury of enforcement (a facility that is often overlooked). But an order under section 24A cannot be made during the pendency of the proceedings, save as an adjunct to a legal services payment order.
Looked at from first principles it is obvious to me that when making an order for sale the court has power to make a supplementary order requiring an occupant of the property to give vacant possession of it. It would be absurd if that were not so and the court could only make half an order. 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".
One might think that it was obvious that a supplementary order for the giving of vacant possession could be made under section 17 of MWPA. After all, the very wording of section 17 gives the court power to make such order as it thinks fit "in any question between husband and wife as to the title to or possession of property" (my emphasis). However, in Wicks v Wicks [1998] 1 FLR 470 at 483H Ward LJ stated "the power [under s.17] to order a sale of the former matrimonial home will not include a power to order possession of it". I am sure that Ward LJ did not mean this literally. I have retrieved the fourteenth edition of Rayden on Divorce, published in 1983 (before the 1984 Act — which introduced section 24A — was passed). At the time it was written the only powers of sale available in divorce proceedings were under section 17 MWPA and section 30 Law of Property Act 1925. At page 682 it states "an order made in proceedings under section 17 of the Married Women's Property Act 1882 may include a provision that one party is to give to the other possession of premises which were the subject matter of the application". It cites Short v Short [1960] 1 WLR 833, a decision of a strong Court of Appeal comprising Hodson, Willmer and Devlin LJJ. The husband was the tenant of the matrimonial home. In his absence the wife committed adultery in it. The husband applied under section 17 of MWPA for possession of the home. All three Lords Justice were abundantly clear that the court had power under section 17 to order the wife to give up possession of the property. They cited the Court of Appeal decisions of Bramwell v Bramwell [1942] 1 K.B. 370 and Stewart v Stewart [1948] 1 K.B. 507, which said so in terms. The majority (Hodson and Willmer LJJ) upheld Mr Registrar Kinsley who had, in the exercise of his discretion, adjourned the application until the conclusion of the divorce proceedings. Devlin LJ, however, was of the view that since adultery was admitted, the court had no discretion under section 17, but was bound to make an order in favour of the husband for possession ex debito justitiae.
In Wicks v Wicks at Ward LJ continued:
"To make an order, as the judge did here, for the husband to deliver up vacant possession is to make an order restricting or terminating the rights of occupation which are conferred upon the husband by virtue of Section 1 of the Matrimonial Homes Act 1983. As Lord Hailsham of St Marylebone said in Richards v Richards [1984] 1 A.C. 174, 199H:-
"Where, as here, Parliament has spelt out in considerable detail what must be done in a particular class of case it is not open to litigants to bypass the special Act, nor to the courts to disregard its provisions by resorting to the earlier procedure, and thus chose to apply a different jurisprudence from that which the Act prescribes. Any other conclusion would, I believe, lead to the most serious confusion. The result of a particular application cannot depend on which of two alternative statutory provisions the applicant invokes, where one is quite general and the other deals in precise detail with the situation involved and was enacted at a time when the general provision already existed."
The judge was not asked to consider the Matrimonial Homes Act 1983, but she should have been. The respondent should not have been required to vacate the matrimonial home save and except where the court has taken into account and balanced the factors set out in Section 1(3) of the 1983 Act."
I wholeheartedly agree with this. It seems to me, looking at the matter from first principles, that if the court has before it an application by one spouse for an interim order for sale of a piece of property (howsoever formulated), and that piece of property is the matrimonial home occupied by the other spouse, then the court cannot order vacant possession of it (whether under section 17, TOLATA or procedural rules) without first undertaking the exercise required by section 33 of the Family Law Act 1996 (the successor to the Matrimonial Homes Act 1983). It seems to me that to do otherwise would be to by-pass specific legislation on the point and to fall foul of Lord Hailsham's proscription.
However, in Miller-Smith v Miller-Smith the Court of Appeal reached a different conclusion in a case where the home was jointly owned and where the application for the interim sale was formulated under TOLATA. At para 23 Wilson LJ stated:
"It is not for us to question the observation [in Wicks v Wicks] that the power to order a sale under s.17 of the Act of 1882 does not include a collateral power to order that vacant possession of it be given on or for the purposes of the sale. What is clear, indeed accepted by Mr Wilson, is that under s.13 of TOLATA there is power in effect to order that vacant possession of a property be given, whether on sale or otherwise. So, to the extent that Wicks is the peg on which Mr Wilson seeks to hang his argument that the husband needs to satisfy the requirements of s.33 of the Act of 1996, being the successor to s.1 of the Act of 1983, the peg cannot hold the argument and breaks from the wall at once. One may say, broadly, that it would be surprising if an order that in effect a spouse should give vacant possession of a matrimonial home under TOLATA were to be made in circumstances in which the applicant could not have secured an occupation order. But I have already stressed the width of the mandatory enquiry under TOLATA; and Mr Wilson's submission that the recorder was required in law to conclude that an occupation order should be made against the wife is in my view invalid. Nor does Mr Wilson wrestle convincingly with the recorder's further observation that, had such a conclusion been requisite, it would have been apt."
It seems to me that this view (that if the claim for interim relief is formulated under TOLATA then the exercise under section 33 of the 1996 Act can be bypassed) is founded on an incorrect concession by counsel (as Mr Le Grice QC rightly, in my view, submits) and the acceptance of the incorrect view that there is in fact no power under section 17 to order vacant possession, in contrast to an application under TOLATA. It is clear that Ward LJ did not mean to say that there was literally no power to order a wife to vacant possession under section 17. If, as it seems to me, the procedural powers under the MWPA and TOLATA had been seen to be identical then I believe that Ward LJ's view would have been followed (indeed had to be followed) in Miller-Smith v Miller-Smith.
While legally interesting my...
To continue reading
Request your trial
-
S v S (Matrimonial Home: Interim Order for Sale)
...possession of the property, applying Short v Short [1960] 1 WLR 833, Miller Smith v Miller Smith[2009] EWCA Civ 1297 and BR v VT[2015] EWHC 2727 (Fam). However, a formal application under one of those statutes must be before the court before an application for interim sale could properly be......
-
SR v HR
...of opinion between Cobb J and myself as to whether an interim order for sale can be made under FPR 20.2(1)(c)(v): see BR v VT [2015] EWHC 2727 (Fam) and WS v HS [2018] EWFC 11. I firmly and respectfully maintain my view. An order for the sale of property is essentially procedural; of itself......
-
RA v KS
...of opinion between Cobb J and myself as to whether an interim order for sale can be made under FPR 20.2(1)(c)(v): see BR v VT [2015] EWHC 2727 (Fam) and WS v HS [2018] EWFC 11. I firmly and respectfully maintain my view. An order for the sale of property is essentially procedural; of itsel......