If your property is no longer affordable and you are at risk of repossession or bankruptcy you may be able to apply to the court for an interim order for sale to force the sale of your house during your divorce.

In this insight we explain the position for divorcing couples without an existing financial order in place.  If you already have a financial order in place and your ex-spouse is not co-operating with the order you will need to return your case to court for directions and/or issue enforcement proceedings.  For more information read our insight How can I enforce a sale or transfer of property in a divorce order? (watsonmorrisfamilylaw.co.uk).

There are several ways you can apply to the court for an order to force the sale of your house in a divorce:

Application under section 14 of the Trust of Land and Appointment of Trustees Act 1996 (TLATA 1996)

Section 14 of TLATA 1996 allows for the sale of any matrimonial property in which both parties have a legal or beneficial interest. The court has discretion to make any order that it thinks fit, including an order excluding occupation.  When exercising its discretion the court has to take into account a number of factors, including the purposes for which the property is held and the circumstances and wishes of the individuals entitled to occupy the property (section 15, TLATA 1996).

In Miller-Smith v Miller-Smith [2009] EWCA Civ 1297, the Court of Appeal held that the husband was entitled to pursue an order for sale of the former matrimonial home under section 14 of TLATA 1996, where the wife was defending the husband’s application for divorce and he was having to service a mortgage debt of £7 million on the property that he could not afford. The Court of Appeal reasoned that:

  • When the court considers whether to exercise its discretion, it should first ask itself whether the issue can reasonably be left to be resolved within the financial remedy proceedings.
  • The court should also consider whether the parties can apply for financial orders within a period of time that is tolerable in all the circumstances.
  • If there appears to the court to be any measurable chance that the party opposing the order for sale   will, on an application within that period of time, be able to preserve their occupation of the home (by outright transfer or variation of the trust of land), it is unlikely that an order for sale would reflect a proper exercise of the court’s discretion.
  • The court is not required to satisfy itself that it would also be appropriate to make an occupation order against the party opposing the sale under section 33(3)(e) of the Family Law Act 1996, and consider the circumstances specified in section 33(6) of the Family Law Act 1996.  

Applying the above principles to the facts in Miller-Smith the Court of Appeal decided that:

  • The husband’s application crossed the threshold stage. He had issued his application for divorce more than a year before his order for sale application was heard. The wife’s defence of the application for divorce had delayed proceedings and the application for financial orders was unlikely to be determined within a further year. If the property was not sold, the husband would be required to continue funding the outgoings. It would not have been possible to resolve the issue in the proceedings for financial orders within a period of time that was tolerable in all the circumstances.
  • There was no measurable chance of the wife preserving her occupation of the property. Apart from earnings, the husband had no substantial resources other than his interest in the property. She was therefore unlikely to succeed in any application for an outright transfer of the property   to her or for the property to be held under a trust of land.

Application under section 17 of the Married Women’s Property Act 1882 (MWPA 1882)

Under section 17 the court has the power to make such order as it thinks fit in any question between a husband and wife about the title to or possession of property. This enables the court to declare and enforce the parties’ proprietary rights according to trust and common law principles and includes the power to make an order for sale.  Section 17 does not however give the court the power to adjust the parties’ proprietary rights.  

An application to force the sale of a house in divorce under section 17 may be useful where one party may become bankrupt because a declaration as to each party’s beneficial interest in the property may assist against any subsequent claim by the trustee in bankruptcy. It can also be used if parties are unable to obtain a divorce or judicial separation or where a party wishing to apply for a financial order has remarried.

Application under Part 20 of The Family Procedure Rules 2010 (FPR 20)

FPR 20.2(1)(c)(v) states that the court may grant an order for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly. Relevant property is defined as property (including land) which is the subject of an application or as to which any question may arise on an application.

Ordering vacant possession and difference of judicial opinion on FPR 20

In BR v VT [2015] EWHC 2727 Mostyn J controversially challenged the view of Ward LJ in Wicks v Wicks [1998] 1 FLR 470 that there is no power to order vacant possession when the court orders a sale of property under section 17 MWPA 1882.  He interpreted FPR 20.2((1)(c)(v) as providing a separate procedural route to obtain an interim order for sale in proceedings for financial orders. He considered the procedural powers under section 14 of TLATA 1996 and section 17 of MWPA 1882 to be identical and concluded that, whether an application is made under either provision or FPR 20, if one spouse is seeking an interim order for sale of the matrimonial home occupied by the other spouse who has home rights, the court cannot order vacant possession without first being satisfied that the occupying spouse’s home rights should be terminated under section 33(3)(e) of the Family Law Act 1996 (FLA 1996), applying the evaluative factors in section 33(6).  

The evaluative factors in section 33(6) FLA 1996 are:

  1. the housing needs and housing resources of each of the parties and of any relevant child;
  2. the financial resources of each of the parties;
  3. the likely effect of any order, or of any decision by the court not to exercise its powers on the health, safety or wellbeing of the parties and of any relevant child; and
  4. the conduct of the parties in relation to each other and otherwise.

In BR v VT Mostyn J ordered:

  • Termination of the wife’s right of occupation (section 33(3)(e), FLA 1996) and supplementary removal of her notice of home rights (paragraph 4, Schedule 4, FLA 1996).
  • Sale of the former matrimonial home (FPR 20.2(1)(c)(v)).

In WS v HS (appeal-sale of matrimonial home) [2018] EWFC 11 Cobb J gave guidance on when, and in what circumstances a court can make an interim order for sale of a former matrimonial home. He confirmed that an interim property adjustment order   cannot be made under Matrimonial Causes Act 1973. An order for sale can only be made on or after a financial remedy order, so an application under FPR 20 would deliver a prohibited result. The FPR regulate court practice and procedure but cannot extend the court’s jurisdiction.

FPR 20 does not provide the power to order vacant possession, and this is why in BR v VT the wife’s home rights were terminated under section 33(3)(e) of the FLA 1996. Cobb J found that the court can order vacant possession under MWPA 1882 and under TLATA 1996 (relying on Miller-Smith).

Cobb J set out a two-stage test under FPR 20.2(1)(c)(v):

  • Threshold stage: is the property perishable or is there another good reason for a sale?
  • Discretionary stage: how should the court exercise its discretion?

Whether there is a good reason for the sale should be decided on the facts of each case. The court should consider all the relevant circumstances and any statutory factors. If necessary, termination of a spouse’s home rights under section 33(3)(e) of the FLA should be considered at the discretionary stage.

In a footnote to his judgment in SR v HR [2018] EWHC 606 (Fam), Mostyn J noted the difference of opinion between him and Cobb J. He reiterated his view that an interim order for sale can be made under FPR r.20.2(1)(c)(v) but directed that until the question is resolved by a higher court, such applications should be made under MWPA 1882.

In RA v KS [2023] EWFC 102, the wife applied for an interim order for the sale of a property that she co-owned with the husband and occupied it (section 17, MWPA 1882). Recorder Allen KC noted Cobb J’s approach (WS v HS) that the court has the power to order vacant possession under MWPA 1882 and TLATA 1996, but the power does not preclude the need to consider section 33(3) of the FLA 1996. He concluded that the court did not have jurisdiction to extinguish the husband’s right of occupation and order vacant possession, because the husband had a legal and beneficial interest in the property. This meant section 33(3)(d) of FLA 1996 applied (rather than section 33(3)(e)). The court could prohibit, suspend or restrict his right to occupy the property, but not permanently extinguish his right and order vacant possession.

If however the respondent’s right to occupy arises solely from home rights, then their right to occupy can be extinguished (section 33(3)(e), FLA 1996).

Can I force the sale of my property in a divorce – conclusion  

To sum up – the court can force a sale of a property before the conclusion of financial remedy proceedings.  An applicant will need to carefully consider whether to apply under section 14 TLATA 1996 or section 17 MWPA 1882 and must specify in their application their case regarding the respondent’s right of occupation. The team at Watson Morris Family Law can help you navigate the law on interim orders for sale. For an initial free no obligation discussion to see how we can help please contact us.

Written by Caroline Watson

August 17, 2023

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