S v T [2021] EWFC B11 (15 February 2021)

S v T [2021] EWFC B11 (15 February 2021)

The application to set aside the order fails because the cladding defect was a 'known unknown' at the time of the order, not an unforeseeable event, and the wife could have discovered the true state of affairs with due diligence by awaiting inspection. The order should not be set aside. However, fairness requires that the wife be given a reasonable period to resolve the cladding issue before enforcement of sale, with statutory interest to compensate the husband for delay, and conditions to ensure transparency and continued efforts to resolve the issue.

Citation
[2021] EWFC B11
Parties
Applicant/wife: S; Respondent/husband: T
Jurisdiction
England and Wales
Judgment Date
15 February 2021
Procedural Posture
Financial Remedies/family Law / Post Final Order, Applications to Enforce and Set Aside
Outcome
Order for sale of the family home made, but implementation delayed to allow wife time to resolve cladding issue and raise funds; statutory interest to run on unpaid sums; wife to undertake responsibility for property costs and best endeavours to resolve issue; further terms to be agreed or adjudicated.
Legal Topics
Financial Remedies, Set Aside Applications, Enforcement of Orders, Property Adjustment, Cladding/building Safety
Family Law Financial Remedies Set Aside Applications Enforcement of Orders Property Adjustment Cladding/building Safety

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Parties

S

Applicant/wife

T

Respondent/husband

Procedural Posture

Financial Remedies/family Law / Post Final Order, Applications to Enforce and Set Aside

Legal Issues

  1. 1 Whether the financial remedies order dated 21 November 2019 should be set aside due to post-order discovery of defective cladding affecting the family home
  2. 2 Whether an immediate order for sale of the family home should be made to enforce the lump sum payment to the husband
  3. 3 Whether the wife should be granted time to resolve the cladding issue before sale or enforcement

Ratio Decidendi

The application to set aside the order fails because the cladding defect was a 'known unknown' at the time of the order, not an unforeseeable event, and the wife could have discovered the true state of affairs with due diligence by awaiting inspection. The order should not be set aside. However, fairness requires that the wife be given a reasonable period to resolve the cladding issue before enforcement of sale, with statutory interest to compensate the husband for delay, and conditions to ensure transparency and continued efforts to resolve the issue.

Court Disposition

Order for sale of the family home made, but implementation delayed to allow wife time to resolve cladding issue and raise funds; statutory interest to run on unpaid sums; wife to undertake responsibility for property costs and best endeavours to resolve issue; further terms to be agreed or adjudicated.

Orders

  • Application to set aside the order of 21 November 2019 dismissed.
  • Order for sale of the family home made under Matrimonial Causes Act 1973, s.24A, but implementation delayed for a reasonable period to allow resolution of cladding issue.