RA v KS
| Jurisdiction | England & Wales |
| Judge | Allen |
| Judgment Date | 23 June 2023 |
| Neutral Citation | [2023] EWFC 102 |
| Court | Family Court |
| Docket Number | No: ZZ 22 D 17310 and 1653-9059-1136-8825 |
[2023] EWFC 102
RECORDER Allen KC
No: ZZ 22 D 17310 and 1653-9059-1136-8825
IN THE FAMILY COURT
SITTING IN THE CENTRAL FAMILY COURT
Miss Sassa-Ann Amaouche and Mr. Simon Calhaem instructed by Sears Tooth for the applicant
Miss Charlotte Hartley instructed by Jones Nickolds for the respondent
(INTERIM ORDER FOR SALE)
Hearing date: 17 th May 2023
) On 17 th May 2023 I heard a directions appointment following a private FDR appointment which had been heard by Miss Jude Allen on 8 th February 2023. Miss Sassa-Ann Amaouche appeared for the applicant (‘W’) and Miss Charlotte Hartley for the respondent (‘H’).
) At that hearing I was asked to determine an application for an interim order for sale of a property known as the Barn. The application was made by W and opposed by H. Both counsel argued the case in their respective position statements on the merits. However, at the outset of the hearing, I raised a question of my own initiative which I phrased in my order in the following terms:
“the jurisdiction to order vacant possession of the Barn under section 33 of the FLA 1996 on [W's] current applications made under FPR 2010 r20.2(1)(c)(v) on 28 th April 2023 and MWPA 1882 s17 on 11 th May 2023 given it is common ground that [W] and [H] both have a legal and beneficial interest in the said property and therefore [FLA 1996] s33(3)(d) rather than s33(3)(e) applies.”
) At Miss Amaouche's request I gave W the opportunity to consider her position in light of this question and, if she so chose, to file and serve a skeleton argument by 31 st May 2023 and H the opportunity to file and serve a skeleton argument in reply by 14 th June 2023. This was on the express basis that the costs of my deciding this issue would be live to be determined under FPR 2010 r28.2 and not r28.3.
) A skeleton argument was subsequently filed by Mr. Simon Calhaem on W's behalf on 31 st May 2023 and by Miss Hartley on H's behalf on 14 th June 2023.
) It is (rightly) common ground that (i) an order for sale of property stems from MCA 1973 s24A which ( per s24A(1)) can only be made on or after “… an order under section 22ZA … a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order…”; and (ii) save for an order under s22ZA (i.e. a legal services payment order) orders for sale are final orders that ( BR v VT (Financial Remedies: Interim) [2016] 2 FLR 519 per Mostyn J at [3]) “cannot be made during the pendency of the proceedings”.
) In BR v VT Mostyn J identified at [2] three procedural routes under which a party may seek an interim order for the sale of property prior to the making of a final order namely (i) MWPA 1882 s17; 1 (ii) TLATA 1996 ss13 and 14 (if both spouses have a beneficial interest in the property); and (iii) FPR 2010 r20.2(1)(c)(v) (described as the counterpart of CPR 1998 r25(1)(c)(v) which is phrased identically).
) In BR v VT the husband's application was framed as seeking the removal of the wife's home rights notice via FLA 1996 Part IV. The husband had sole ownership of the property. The only obstacle to a sale was the wife's home rights notice. Therefore had no interim order been made, the husband would have been free to sell the property in any event (absent the wife seeking an injunction). Therefore although Mostyn J ultimately made an interim order for sale under FPR 2010 r20.2(1)(c)(v), he did not have to do so.
) The ratio of BR v VT is therefore largely confined to the exercise of terminating a home rights notice and the giving up of vacant possession. However, Mostyn J made remarks about the interim jurisdiction more generally. Having considered inter alia Short v Short [1960] 1 WLR 833, Wicks v Wicks [1998] 1 FLR 470 per Ward LJ, and Miller-Smith v Miller Smith [2010] 1 FLR 1402 per Wilson LJ (as he then was) his view was that:
a. Ward LJ had not meant to say in Wicks that there was no power to order vacant possession under the MWPA 1882 s17 given the Court of Appeal had previously said the contrary in Short;
b. Ward LJ was right to say that the MHA 1983 s1 (the forerunner to the FLA 1996 s33) exercise (i.e. the test for the making of what under the latter statute is called an occupation order) should be considered before ordering vacant possession; and
c. the Court of Appeal in Miller-Smith fell into error in concluding that FLA 1996 s33 could be bypassed given that TLATA 1996 s13 includes the power to order vacant possession because they were operating on the incorrect view that there was no power to order vacant possession under MWPA 1882 s17. 2
) Therefore per Mostyn J in BR v VT, under each of the three procedural routes, the court must perform the evaluative exercise provided by FLA 1996 s33(6) before terminating home rights and ordering vacant possession. Applying this metric Mostyn J ordered at [36 (i)] the wife's rights of occupation be terminated under FLA 1996 s33; (ii) the wife's home rights notice be vacated; and (iii) a “positive order” for the sale of the home under FPR 2010 r20.2(1)(c)(v).
) In WS v HS (Sale of Matrimonial Home) [2018] 2 FLR 528 the property at issue was in the parties' joint names. The husband made an application using the FPR Part 18 procedure for an interim sale of the family home but failed to identify the jurisdiction upon which he relied within the application notice. At first instance, counsel for the wife conceded there was a freestanding jurisdiction to make an order under FPR 2010 r20.2(1)(c)(v). The first instance judge was not referred to the test under the said rule, the MWPA 1882 s17, the FLA 1996 s33 exercise or the remit of TLATA 1996. The application was granted and an interim sale ordered.
) On appeal before Cobb J, the wife argued that her rights of occupation could not be terminated through the FPR 2010 alone and that the judge had failed to conduct the FLA 1996 s33 exercise as required. During the hearing, the submission was clarified further – as the wife's right to occupy derived from a legal and beneficial interest in the property (different to BR v VT), the extent of what could be achieved under FLA 1996 was an order under section 33(3)(d) (emphasis added):
(3) An order under this section may—…
(d) if the respondent is entitled as mentioned in subsection (1)(a)(i), prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling-house;
(e) if the respondent has home rights in relation to the dwelling-house and the applicant is the other spouse or civil partner, restrict or terminate those rights.
) It was said that unlike a subsection (e) case, where the right to occupy is borne solely of home rights, a subsection (d) case cannot terminate the right to occupy – the most it can do is prohibit, suspend or restrict that right.
) Cobb J allowed the appeal on the following bases:
a. orders for sale under MCA 1973 s24A cannot be made on an interim basis save for the payment of a legal services funding order (s22ZA);
b. FPR 2010 r20.2(1)(c)(v) does not provide the court with a freestanding jurisdiction to make an interim order for sale – if that were right, it would be inconsistent with the prohibition circumscribed by MCA 1973 s24A;
c. the routes available to the husband were the MWPA 1882 and/or TLATA 1996;
d. such an application under either statute requires a FLA 1996 s33 analysis to provide vacant possession (again disagreeing with Miller-Smith where the Court of Appeal did not agree that such an exercise was needed under TLATA 1996);
e. the husband would need to surmount the difficulty that by virtue of the wife's legal and beneficial interest, her rights of occupation could not be ‘terminated’ in any event. At [53] (iv) he stated as follows:
There is a material difference between the ‘termination’ (s 33(3)(e)) of a spouse's home rights, and the ‘prohibition, restriction or suspension’ of his/her rights of occupation (s33(3)(d)). I do not consider – indeed neither counsel argued – that prohibition, suspension or restriction is synonymous with termination, and I do not consider that a ‘prohibition’ could be used to exclude a wife during the period of the conveyance of sale simply so as to give vacant possession to the buyer. It is important for the applicant for an order to assert his/her case specifically and clearly as to the respondent's ‘rights’;
f. it was therefore questionable whether the court could even order vacant possession on an interim sale in such circumstances; and
g. as the only substantive application the husband had made was for financial relief under MCA 1973 ss23 and 24 no jurisdiction had been identified in the application under appeal for the interim order sought and made.
) Cobb J agreed with Mostyn J to the extent that Ward LJ could not have meant to say in Wicks that an order under MWPA 1882 cannot encompass the power to order vacant possession. However he observed that in allowing the husband's appeal against the order for vacant possession and an interim sale, Ward LJ specifically rejected the notion that the old RSC 1965 and the then FPR 1991 provided a freestanding jurisdiction to make an interim order for sale and had pointed out that it would be odd if the procedural rules allowed a litigant to circumvent the express prohibition in the MCA 1973 on an interim order for sale. Cobb J also observed that whilst in Miller-Smith the Court of Appeal had upheld an interim order for sale with vacant possession under TLATA 1996 without the need to perform the FLA exercise, the court had been reluctant to endorse such a strategy in matrimonial litigation given that by such an order “ 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” (per Wilson LJ at [59]).
) Cobb J went on to consider the...
To continue reading
Request your trial