WS v HS (appeal - sale of matrimonial home) [2018] EWFC 11 (28 February 2018)

WS v HS (appeal - sale of matrimonial home) [2018] EWFC 11 (28 February 2018)

The District Judge erred in law by making an interim order for sale of the matrimonial home without a substantive application under MWPA 1882 or TOLATA 1996, and without undertaking the required statutory exercise regarding occupation rights under FLA 1996. Procedural rules cannot confer jurisdiction where statute prohibits such interim relief.

Citation
[2018] EWFC 11
Parties
Applicant: WS; Respondent: HS
Jurisdiction
England and Wales
Judgment Date
28 February 2018
Procedural Posture
Family Law Appeal / Appeal Against Interim Order for Sale of Matrimonial Home
Outcome
Appeal allowed; interim order for sale set aside.
Legal Topics
Interim Orders, Sale of Matrimonial Home, Jurisdiction of Family Court, Financial Remedies, Occupation Rights
Family Law Interim Orders Sale of Matrimonial Home Jurisdiction of Family Court Financial Remedies Occupation Rights

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Parties

WS

Applicant

HS

Respondent

Procedural Posture

Family Law Appeal / Appeal Against Interim Order for Sale of Matrimonial Home

Legal Issues

  1. 1 Whether the court had jurisdiction to order interim sale of the matrimonial home under FPR 2010 rule 20.2(1)(c)(v)
  2. 2 Whether a formal application under MWPA 1882 or TOLATA 1996 was required for interim sale
  3. 3 Whether the District Judge applied the correct legal test for interim sale and occupation rights

Ratio Decidendi

The District Judge erred in law by making an interim order for sale of the matrimonial home without a substantive application under MWPA 1882 or TOLATA 1996, and without undertaking the required statutory exercise regarding occupation rights under FLA 1996. Procedural rules cannot confer jurisdiction where statute prohibits such interim relief.

Court Disposition

Appeal allowed; interim order for sale set aside.

Orders

  • Order of District Judge Pescod dated 14 December 2017 set aside