Recorder Allen KC. Determination of W’s application for an interim order for sale. At an earlier directions hearing following a private FDR, the judge raised whether there was jurisdiction to order vacant possession of the property under s 33 of the Family Law Act 1996 (FLA) when considering applications under FPR 20.2(1)(c)(v) and s 17 of the Married Women’s Property Act (MWPA), in circumstances where both parties had legal and beneficial interest in the property so s 33(3)(d) applied (enabling the court to ‘prohibit, suspend or restrict’ the exercise of a right to occupy) rather than s 33(3)(e), which enables the restriction or termination of occupation rights.

The judge considered the three procedural routes to an interim order for sale identified by Mostyn J in BR v VT, and his judgment that the court must perform the evaluative exercise under s 33(6) FLA 1996 before terminating home rights and ordering vacant possession. In BR v VT, the property was owned in the sole name of the H and the W had entered a home rights notice on the property, so s 33(3)(e) FLA 1996 applied. The judge also considered the judgment of Cobb J in WS v HS, where the property was in joint names, and noted that Cobb J raised the issue that the W’s rights of occupation could not be terminated under s 33(3)(d) FLA 1996.

Recorder Allen KC concluded that if an application for an interim order for sale under s 17 MWPA 1882 seeks vacant possession of a dwelling house to be ordered, the court’s powers are limited by what is set out in s 33(3) FLA 1996. Therefore, if the respondent has a legal and beneficial interest in the property then, under s 33(3)(d) FLA 1996, the right to occupy may be prohibited, suspended or restricted but the court does not have the power to extinguish permanently or irrevocably these rights. If the respondent has a legal and beneficial interest in the property, the only option is for the applicant to have recourse to an application under the Trust of Land and Appointment of Trustees Act 1996 – albeit the judgments of WS v HS and Miller-Smith have cautioned against that approach.

The court therefore concluded that there was no jurisdiction to make the order that the W sought.

Costs were considered following written submissions. The judge ordered W to pay H’s costs of the application as H had been successful and, at the earlier directions hearing, the judge gave the W an opportunity to consider whether to pursue the application as well as putting the parties on notice that costs would be a live issue. Those costs were payable within 14 days but the order was not to be enforceable until the making of a final order at the conclusion of the proceedings.