Elizabeth Anne Wicks v Barry Edwards Wicks
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE WARD |
| Judgment Date | 06 October 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1006-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | LTA 97/6744/K |
| Date | 06 October 1997 |
[1997] EWCA Civ J1006-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(HER HONOUR JUDGE PEARLMAN)
Royal Courts of Justice
Strand
London W2A 2LL
Lord Justice Peter Gibson
Lord Justice Ward
LTA 97/6744/K
MR CHRISTOPHER POCOCK1 (instructed by Messrs Withers, London EC4A 3DE) appeared on behalf of the appellant husband.
MR ROBIN SPON-SMITH (instructed by Messrs Guillaumes, Weybridge, Surrey) appeared on behalf of the respondent wife.
Lord Justice Ward will give the first judgment.
This is an application for leave to appeal the order made by Her Honour Judge Pearlman on 17th July of this year when on the wife in this divorce suit undertaking not to mortgage, charge or otherwise dispose of her interest in the property that she was intent upon purchasing, it was ordered that a sale be made of the former matrimonial home and the payment out of the proceeds of £250, 000 (or 40 per cent) for the purpose of enabling the wife to buy a home for herself and the children. The order gave ancillary directions for the husband to give vacant possession of the property to facilitate the exchange of contracts and completion. He was to allow the property to be available for inspection by prospective purchasers.
The order was made, as is apparent from the face of the order, pursuant to Order 31, rule 1 of the Rules of the Supreme Court read with rule 2.6(4) of the Family Proceedings Rules 1991. The husband seeks leave to appeal —and if he is out of time by two days I would extend the time for him to apply —upon a basis that arguable issues arise as to the correctness of the jurisdiction upon which the judge proceeded. This raises questions which have been asked in the Family Division, principally since the case of Barry v. Barry [1992] 2 FLR 140, then referred to by Connell J in the case of Green v. Green [1993] 1 FLR 326 and by Thorpe J, as he then was, in F v. F [1995] 2 FLR 45.
The Court of Appeal has not yet had an opportunity to consider those authorities. It seems to me that this presents an occasion when the court can have regard to those difficult questions although this case is perhaps not the best example to put them precisely to the test. The reason for that reservation is that this property was conveyed by the husband, by deed, into the sole name of the wife to hold both the legal and the beneficial interests in the property. On the face of it therefore she needs no order for sale to sell her own property. Perhaps what she does need is an order to exclude him from his occupation.
Those are matters that could well...
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