If you don't ask, you don't get..

13th March 2018 Family Law

Separation can push the family finances to breaking point. Couples already overextended with their mortgage obligations can really struggle when the pressure to build two households out of one bites. This situation becomes all the more acute where one or both parties are facing a drop in income due to circumstances beyond their control.

For this reason, I am frequently asked to advise on whether it is possible to force the early sale of a family home. Although both parties may agree to put the family home on the market while everything is being finalised, this agreement can fall apart when a realistic offer to buy the property actually comes along. Whilst the court can order the sale of property as part of a final order dealing with all aspects of a couple's finances, whether or not a judge can order a sale before this point is a more complicated question.

This came up in a really interesting case report only last month, WS v HS [2018] EWFC 11. A couple going through divorce had had their family home on the market for around two years, initially for £950,000 then for a reduced price of £850,000. Not long after this reduction, an offer to buy for £785,000 was received.

The husband (who had gone from earning £250k a year to receiving jobseeker's allowance when his company went into liquidation) wanted to accept but the wife did not. In order to get the court to force the transaction through, he applied to the court for an interim order for sale. Although a district judge allowed the application, this was overturned on appeal to a High Court judge.

Let's have a look at the law because there is a bit of background to this:

  • Under the main legislation on financial settlements on divorce the court cannot ordinarily make orders dealing with capital, including property, until it makes a final order dealing with everything that will come into effect at the point of decree absolute
  • The court can use older legislation (section 17 of the Married Women's Property Act 1882 to be precise) to make an interim order for sale if it has first done a careful discretionary analysis of whether it would be appropriate to force someone to leave their home in all the circumstances
  • Where a property is in the couple's joint names, the court can use the Trusts of Land and Appointment of Trustees Act 1996 (known as TLATA) to order the sale. However, the court is bound to consider whether the request to sell is so urgent that it needs to be sorted out before all other financial issues as part of a final order
  • The court cannot rely on procedural rules alone to order an interim sale where there is no legislation allowing this step

Taking this all into account, the court allowed the wife's appeal and overturned the order for sale. This is not to say that the house will not be sold in the long term but it won't be until a final order is made.

The judge said that the husband could have made an application under the Married Women's Property Act 1882 or TLATA, but he had not. Selling a house against someone's wishes is a big step and the court said it would not assume that an application like this had been made informally, as it sometimes does to save time and formality. The application(s) need(s) to be made formally, on paper with the proper notice and time for response.

Back to where we started, can you force the sale of a house against someone's wishes before a final order is made? Yes, but there needs to be very real financial justification for doing so, the court has to consider all the circumstances and consequences of the sale fully and the application has to be made in the proper format.


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Holly Tootill is a Partner located in Manchesterin our Family department

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