Wicks v Wicks

The court cannot use its inherent jurisdiction to create interim capital or property rights which statute does not confer. Procedural rules regulate existing jurisdiction; they do not authorise an interim sale or reallocation of matrimonial assets pending final ancillary-relief proceedings. An equitable appropriation analogy cannot justify placing matrimonial assets under one spouse’s sole control. A title dispute may instead be addressed under section 17 of the Married Woman’s Property Act 1882, whose associated sale power may be used where appropriate. A sale order does not itself authorise vacant possession: occupation rights under the Matrimonial Homes Act 1983 must be considered.

The wife applied for the sale of a property registered in her sole name, delivery of vacant possession, and payment of part of the proceeds to rehouse herself and the children pending determination of her ancillary-relief claims. Her husband claimed an equitable interest and occupied the property. Her Honour Judge Pearlman granted the application under Order 31 rule 1 of the Rules of the Supreme Court and rule 2.64 of the Family Proceedings Rules 1991. The husband appealed. The central issues were whether the court had jurisdiction to order an interim sale, reallocate the proceeds, and require possession before final financial orders.

Lord Justice Ward delivered the leading judgment. Sir John Vinelott and Lord Justice Peter Gibson agreed that the appeal should be allowed.

1. Inherent jurisdiction. The inherent jurisdiction is procedural. It may control litigation and prevent abuse, but it cannot supply substantive financial or property relief absent a statutory or other recognised legal power. The proposed reallocation of assets was substantive relief, not merely case management. The reasoning in Barry v Barry was therefore rejected, and that decision could not be regarded as good law.
2. Appropriation and Order 31. There was no general equitable power to appropriate matrimonial assets for a contingent claim. The approach in F v F and Green v Green could not be followed. Order 31 rule 1, applied through rule 2.64(3) of the Family Proceedings Rules 1991, was procedural and could not extend jurisdiction. It could not be used to pre-empt the statutory conditions governing sale under section 24A of the Matrimonial Causes Act 1973.
3. Available remedy and possession. The wife did not need an interim sale order merely to sell property held in her name. The husband’s asserted equitable interest could be determined under section 17 of the Married Woman’s Property Act 1882, which included power to order a sale. However, sale did not carry an automatic power to require vacant possession. The husband’s occupation rights under section 1 of the Matrimonial Homes Act 1983 could not be restricted without considering the factors in section 1(3).
4. Interim lump sum. The court identified substantial statutory and procedural difficulties concerning an interim lump sum, including sections 23 and 31 of the Matrimonial Causes Act 1973 and section 32 of the Supreme Court Act 1981, but left that route undecided.

The appeal was allowed with costs, subject to enforcement only with leave of the court. There was no order as to costs below, and legal aid taxation was directed. The wife’s interim application was dismissed.

1. Court of Appeal: Allowed the husband’s appeal from the order of Her Honour Judge Pearlman dated 17 July 1997 and dismissed the wife’s interim application.
2. High Court: Granted interim orders for sale, vacant possession and application of part of the proceeds towards rehousing pending determination of ancillary relief.