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Published: 20th March 2018
In a recent case involving a former husband and wife, Mr Justice Cobb granted an appeal made by the wife during financial remedy proceedings regarding an interim order for the sale of the couple’s former matrimonial home. When the couple separated, the wife continued to live in the matrimonial home, while the husband moved into a holiday home they owned.
The couple, who had three children together during their 25-year marriage,were at the initial stages of their financial remedy proceedings and had both agreed that there was a need for them to sell their home. The couple had not yet attended the first appointment of the proceedings, but had voluntarily exchanged Forms E, in which both parties included a request for a final order to sell the property.
The Interim Order
At that point, the property had been on the market for about two years, with an initial asking price of £950,000, however it was then reduced to £850,000 in the autumn of 2017. Following the price reduction, there was an offer of £785,000 which the husband wanted to accept, but the wife did not. As a result, the husband opened financial remedy proceedings, making an application for an interim order for the sale of the property.
The wife had a clear objection to the sale of the property, suggesting that the price offered for the property would reflect a sale far below the initial asking price and the property's true valuation. She also suggested that she believed the sale of the property should be left until after their daughter had completed her A-level exams, to ensure that she had the best chance of succeeding.
An Appeal against the Order
The District Judge initially made an interim order for the sale of the former matrimonial home, which the wife then appealed against. This then led Mr Justice Cobb to review not only the case but also how the interim order relates to the case.
Having looked at the statutory sources relating to the court’s jurisdiction to enforce an interim order for the sale of the property, and looking at previous cases relating to interim orders, Mr Justice Cobb revealed that the husband’s application could not stand. The wife should also be taken into account in relation to this; as such an interim order could not terminate her occupation rights.
Mr Justice Cobb did suggest that the husband could make an application for such an interim order, but this would have to be done under MWPA 1882 or TOLATA 1996; and it would need to be done formally. He also suggested that if the court had the correct jurisdiction and the application had been made correctly, the husband would then need to meet the criteria of a two-stage test for the application to be passed through. In summary, Mr Justice Cobb accepted the wife’s appeal, and the interim order for the sale of the former matrimonial home was not enforced.
If you are thinking of separation or divorce and are concerned about your financial situation then K J Smith Solicitors can help. Our team of family law specialists have handled financial matters in divorce ranging from the straightforward to the highly complex.
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