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When an enforced sale following a divorce may actually benefit both parties

For various personal and practical reasons, the family home is generally the central and most sought after asset in matrimonial disputes. In some circumstances, the best and only solution is to sell that home for example, if it is the only asset with equity available to share or to free one or other party from the encumbrance of a mortgage, or to pay off other charges secured on the home. Cash from the sale is ultimately shared in appropriate proportions.

When should you sell the property?

In some cases, it is deemed necessary or beneficial to sell the home before a final settlement is reached on all parts of financial provision. In an increasingly volatile property market however where buyers can be scarce and prices squeezed, what happens if a buyer is found to purchase the family home but one party wants to sell and the other does not?

What does the law say?

Can a court order an interim sale of the family home before a final resolution of the respective parties’ outstanding financial claims?

The Matrimonial Causes 1973 specifically prohibits the granting of an interim order for sale of property on this basis. This is because an order for sale of property under s 24A Matrimonial Causes Act 1973 is barred “during the pendency of the proceedings, save as an adjunct to a legal services payment order”. This can be frustrating and lead to the loss of a buyer and perhaps force a devaluation of the property if another buyer is not found quickly, ultimately reducing the equity from the sale.

Recent changes to family law and the enforced sale of property

In recent years, there has been a slight change in thinking where judges have considered and reviewed other statutes to effect interim orders for sales. For those of you who are interested these have been:

  • The Family Law Act 1996
  • The Married Women’s Property Act 1882
  • Family Proceeding Rule 2010 20.2(1)(c)(v) (§ 36)
  • Trust of Land and Appointment of Trustees Act 1996

These have opened the door for such applications to be pursued, under an alternative legislation.

There was no reported case of a court forcing the sale of a property, which was matrimonial in nature. This was however till 2015 in the matter of BR v VT [2015] EWHC 2727 (Fam), the Judge terminated the wife’s rights of occupation and an order for sale was granted. The risk to the parties was insolvency had the sale not taken place.

Unfortunately, in a very recent case (WS v HS [2018] EWFC11), the Judge disagreed with the manner within which the court achieved an order of sale in BR v VT. The Judge did, however, clarify that an interim order for sale can be sought and made under the Married Women’s Property Act 1882 and Trust of Land and Appointment of Trustees Act 1996.

These applications must be made formally. He provided some helpful guidance and concluded that in his view “the issue of interim capital relief is long overdue for reform and should be re-examined.”

The case shows that in some – albeit rare – circumstances the court will grapple with the need to sell a home sooner than on a final hearing or order. We will see how the law develops in this area.

Clearly, selling a family home is never going to be easy but perhaps the unpredictability of the housing market makes it time to reconsider matrimonial law in this respect. The hardship that can result from losing a buyer and watching the value of a home plummet can be significant and negatively affect both parties whose interests are a stake from the sale which is not the aim of the law.

Giving the courts the power to order an interim sale within matrimonial proceedings, may not be as Draconian as it sounds if it can prevent real hardship from a delayed sale.