AFW v RFH [2023] EWFC 11920 July 2023

Published: 22/08/2023 08:59

Recorder Laura Moys. Enforcement of order for sale and PSO. H found to have breached several provisions of FR order. He refused to cooperate in the sale of the FMH, in which H was still living, despite W having sole conduct of the sale. H refused to engage with and ignored estate agents, including spitting on one of them. H did not respond to W’s attempts to divide the FMH contents, refused to complete the pension sharing annex and refused to cooperate in closing the joint bank account. At court, H agreed he was not cooperating on some level as he did not want to vacate the property. He submitted that house prices had fallen and this should delay the order for sale.


The judgment outlines the law regarding an order for sale and consequential provisions. Fluctuations in the property price do not constitute a significant change in circumstances that would justify the exercise of the Thwaite v Thwaite [1981] 1 FLR 26 jurisdiction in this case. The judge concluded it would not be ‘inequitable’ for her to enforce the order for sale, especially as the delay in marketing the property was caused by H’s behaviour. As H did not intend to comply with the order, it was varied to give W vacant possession. If H remained in the property, then he would be trespassing and W could apply for a warrant to physically remove him.

When considering the mortgage payments whilst a sale was pending, the court weighed up H paying to rent privately alongside the fact it would not be appropriate for W to move back to the FMH due to H allegedly stalking W. The order requiring H to pay all of the mortgage and outgoings on the FMH was varied to state that from the time H vacates the FMH both parties shall pay the mortgage and outgoings in equal proportionately and shall indemnify each other. If H does not pay his half share of the mortgage and outgoings, rather than it being paid to W out of the proceeds of the sale, W will have a judgment debt which she can then apply to be secured by way of charge against H’s shares of the proceeds.

H did not complete his part of the pension sharing annex to implement the PSO, which was made in his favour. The court had no power to vary the PSO as decree absolute had already been granted and the order had taken effect. It was ordered, with a penal notice attached, that H was to complete, sign and return the form. If he did not comply, permission was given for W to inform the court and it would make an order directing disclosure of H’s national insurance number from DWP and thereafter execute the documentation on his behalf.

Costs were awarded in W’s favour.

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