Divorce cases often end with the sale of a property. But can one party force a sale of a house during divorce proceedings?
For many years it was thought that the court did not have the power under any circumstances to make an interim order for sale. However, the case of BR v VT [2015] EWHC 2727 established that this convention was wrong and in fact the court was able to force the sale of a house during divorce proceedings pursuant to the Married Women’s Property Act 1882 (‘MWPA’), Trusts of Land and Appointment of Trustees Act 1996 (‘TOLATA’) or r.20.2(1)(c)(v) of the Family Procedure Rules.
In BR v VT the parties had significant debts, including to HMRC, which could not be discharged without the sale of the property. Mostyn J, who heard the case, found that the court could force the sale the house before the conclusion of the divorce under the MWPA, TOLATA or the Family Procedure Rules, but that it had to consider s.33 of the Family Law Act 1996 before he could order vacant possession i.e. that the party objecting to the sale vacate the property. In doing so he considered:
(a) the housing needs and housing resources of each of the parties and of any relevant child;
(b) the financial resources of each of the parties;
(c) the likely effect of any order, or of any decision by the court not to exercise its powers on the health, safety or well-being of the parties and of any relevant child; and
(d) the conduct of the parties in relation to each other and otherwise.
Having considered the above he made the order for sale and terminated the wife’s right to occupy the property on completion of the sale.
However, Cobb J in WS v HS [2018] EWFC 11 disagreed with Mostyn in his reading of the law. He found:
a) Exceptionally, the court may make an order for sale under section 24A in order to give effect to a legal services payment order under section 22ZA of the Matrimonial Causes Act 1973 i.e. in order to pay one party’s legal fees following a court hearing or agreement.
b) Save for this limited exception, it is well-established that an order for sale under section 24A of the Matrimonial Causes Act cannot be made as an interim measure during financial remedy proceedings. There is no ability to force the sale of a house during divorce under the Family Procedure Rules as this would be at odds with that which is set out in the Matrimonial Causes Act.
c) It is equally well-recognised that the court possesses the power to make interim orders for sale of matrimonial property under section 17 MWPA 1882 (as amended) and under sections 13 and 14 TOLATA 1996, following considering whether the property rights of the other party should be brought to an end having considered s.33(6) of the FLA 1996.
d) The conjunction of sections 13 and 14 of TOLATA 1996 enable the court not only to order sale, but also to order that the beneficiary should give vacant possession.
So in summary, both judges agreed that the court does have the power to force the sale of a house during a divorce, but didn’t agree on the mechanism and the ease of which it can be done. An interim order for sale under the Family Procedure Rules is procedurally easier than an order forcing a sale of a property under TOLATA or the MWPA.
Mostyn responded to Cobb’s comments in WS v HS in a footnote to his subsequent case of SR v HR [2018] EWHC 606 (Fam):
“An order under section 24A can only be made when making an award for capital provision; it cannot be made as an interim measure. There is a regrettable difference 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 it does not alter proprietary rights. I cannot see that words should be read into the rule to the effect that to make such an order an underlying statutory power must be identified. In my opinion to provide in the rules the independent power to order an interim sale is not ultra vires the parent statute (sections 75 and 76 Courts Act 2003). However, until the matter can be resolved by a higher court I suggest that applications for an interim sale are made under section 17 of the Married Women’s Property Act 1882. Such an application is to be made in short form under the Part 18 procedure within the financial remedy proceedings: see FPR 8.13 and 8.14.”
As both decisions were by High Court judges, there is no settled answer as to the mechanism by which a party can force a sale of a property before the conclusion of divorce proceedings. The issue needs to be brought before the higher courts before it can be decided. However, what is clear is that the court can order an interim order for sale of a property but they will likely be reluctant to exercise the power to do so without there being a good reason, such as payment of pressing debts or to meet legal fees.