BR v VT (Rev 1)

Where a court orders the interim sale of a matrimonial home occupied by one spouse, it must first determine whether that spouse’s occupation rights should be terminated under Family Law Act 1996, section 33. This safeguard applies whatever procedural route is used. A sale order may include a requirement for vacant possession. The court must weigh housing needs and resources, financial resources, likely effects on health, safety and well-being, and the parties’ conduct. An interim sale is justified where continued ownership produces an urgent financial deficit, mounting debts and a serious risk of insolvency.

The applicant husband sought an interim sale of the former matrimonial home, occupied by the respondent wife and the parties’ children. The property was owned solely by the husband and was subject to substantial mortgage, family and other liabilities. The wife had previously agreed to marketing and sale but later withdrew that agreement after her relocation application failed.

The central issues were whether the court could order sale and vacant possession during pending ancillary relief proceedings, which procedural route was available, and whether the wife’s home rights first had to be terminated under section 33 of the Family Law Act 1996.

1. Procedural routes. Interim sale may be ordered under section 17 of the Married Women's Property Act 1882, sections 13 and 14 of the Trusts of Land and Appointment of Trustees Act 1996, or FPR 2010 rule 20.2(1)(c)(v). Section 24A of the Matrimonial Causes Act 1973 is unavailable during pending proceedings except as an adjunct to a legal services payment order.
2. Vacant possession. A power to order sale includes the supplementary power to require vacant possession. The court rejected any literal reading of Wicks v Wicks which would deny such a power under section 17.
3. Statutory safeguard. If the property is the matrimonial home occupied by the other spouse, the court cannot order vacant possession, whether the application is framed under section 17, TOLATA or procedural rules, without first undertaking the section 33 exercise under the Family Law Act 1996. The court declined to follow the contrary reasoning in Miller-Smith v Miller-Smith.
4. Application. Applying section 33(6), the court considered housing needs and resources, financial resources, likely effects on well-being, and conduct. Continued ownership would produce a substantial revenue deficit, mounting debts and a risk of insolvency. Sale was therefore necessary.
5. Orders. The wife’s occupation rights were terminated, her rights notice was vacated, and an order for prompt sale was made under FPR 2010 rule 20.2(1)(c)(v). She was required to give vacant possession on completion.