Interested Third Parties Opposing an Order for Sale

How will the court approach its decision when a third party with a beneficial interest opposes an order for sale?

Practitioners may be grateful for this recent judgment setting out:

• criteria the court will consider particularly pertinent; and
• how the needs of the third party should be balanced against the needs of the spouses;

when a third party makes representations, pursuant to s 24A(6) of the Matrimonial Causes Act 1973, opposing the sale of property in which they have a beneficial interest.

Recorder Christopher Stirling has tackled the issue in A v N [2025] EWFC 371 (B), at [91]–[97], and provided a non-exhaustive list of factors, at [95]. Judgment was handed down on 31 October 2025, and the case has been deemed citeable as an authority in respect of the exercise of powers of sale pursuant to s 24A of the Matrimonial Causes Act 1973 where the interests of a third party co-owner need to be considered.

A helpful digest of the case by Jasmine Knapman is located here.

The pertinent facts regarding the third party, R, were as follows:

• The matrimonial home was acquired in February 2012 in the joint names of H and W.
• R provided financial assistance of £130,000 to the purchase, which was held by the court to have been an outright gift, thereby in itself attracting no beneficial interest.
• It was always the intention that R would reside with H and W in a semi-separate ‘granny annexe’.
• Throughout 2012, R made substantial payments to fund the design, fit-out, and construction of the annexe; she subsequently paid for improvements and modifications; which it was held did give rise to a beneficial interest on R’s part.
• The spouses separated in 2023, albeit at the time of the hearing H, W and R all continued to live in the matrimonial home.
• Recorder Stirling determined that R was entitled to a 12% interest in the combined net proceeds of the sale of the matrimonial home (including the annexe), estimated to be £1,332,556. This left a net equity of £1,172,649 remaining between W and H.

Subsequently, the court considered the main financial remedies claim, including the necessity of an order for sale. It was determined that W’s housing needs amounted to £800,000, while H’s housing needs amounted to £510,000. The remaining matrimonial assets, excluding the matrimonial home, were insufficient to cover H’s housing needs. The court concluded, at [147]:

‘This is a case where the only way to make a financial remedies order work is to make the order for sale in respect of the FMH. In doing so I am satisfied that this causes no undue disadvantage to R who I am satisfied will be rehoused with W*.*’

In arriving at this conclusion, the court considered, in particular, six factors pertaining to R’s opposition to the sale. The (non-exhaustive) list of factors derived from this case were as follows:

‘a⁠. The extent of the third party’s interest in any property as compared to that of the spouses;
 
b⁠. Whether the property is the home of the spouses;
 
c⁠. Whether the property is the home of the third party, and in this regard they have a right of occupation by reason of s. 12 of TLATA, or merely a form of investment;
 
d⁠. Whether the property has been modified or adapted in some particular way for the benefit of the third party;
 
e⁠. Whether by reason of the third party’s age or medical condition the fact of the sale will be particularly onerous upon them; and
 
f⁠. Where the property is the third party’s home whether it is proposed and practical that they will be adequately rehoused with one of the other parties.’

What the judgment does not do

The judgment does not affect parties’ rights to litigate the existence or extent of a third party’s purported beneficial interest.

Nor does the judgment alter – although it does helpfully summarise – the law on determining the beneficial ownership of the property. Recorder Stirling, at [30], quotes Nicholas Mostyn QC (as he then was) in TL v ML (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1263: ‘A dispute with a third party must be approached on exactly the same legal basis as if it were being determined in the Chancery Division.’ (Stack v Dowden [2007] 2 AC 432, Jones v Kernott [2012] 2 AC 776, Aspden v Elvy [2012] EWHC 1387 (Ch) and Graham-York v York [2015] EWCA Civ 72 all applied.)

As Recorder Stirling points out at [76], where a third party’s beneficial interest is established (or, as the case may be, admitted), and the third party has a right of occupation pursuant to s 12 of TLATA 1996, that is not itself a bar against an order for sale of the property.

It remains clear that, in accordance with s 25(1) of the Matrimonial Causes Act 1973, the interests of any minor children of the family should be given precedence (and there will continue to be trust cases where the third party in question is a minor child of the family who will rely heavily on s 25(1), perhaps in future supplementing their argument with the new factors given in this judgment). However, the factors in s 25(2), tailored as they are to the balancing the spouses’ interests against each other, ‘seem somewhat inapt in any balance as between spouses and third parties’ ([93]).

What the judgment does do

The judgment sets out the factors the court will take into account when considering an order for sale in the face of a third party’s objection.

As Recorder Stirling identified, at [92], it is indeed strange that there appears to have been no list of such factors set out in case law in the four decades since s 24A(6) was brought into force by the Matrimonial and Family Proceedings Act 1984.

The new list of non-exhaustive factors will particularly assist and offer direction to those representing third parties, both when drafting witness statements and in making submissions in respect of s 24A(6) (in the same vein as parties are accustomed to providing narrative statements checking off each of the relevant s 25 factors in turn). However, every case is fact specific, and this new list of factors was, to a greater or lesser extent, predicated on the facts in this case. So it is important to emphasise that this is a non-exhaustive list and, as the judgment makes clear at para 97, ‘some special factor in the personal circumstances of the third party’ may tip the balance.

The judgment may nevertheless make discouraging reading for a third party opposing an order for sale, as their interest will ‘rarely’ prevail if the court finds no other way to meet the spouses’ needs without an order for sale ([97]).

There are important caveats, too, to the scope of these criteria.

Firstly, the judgment emphasises that these factors concern domestic property rather than commercial interests:

'94. In respect of investments or purely commercial property where a third party has an interest the issue is likely to be less vexed. Any sale will merely realise the third party’s interest, which of course cannot otherwise be invaded by the matrimonial court, which may then be invested elsewhere. However, in respect of domestic property, particularly where that property is also the home of the third party the balance may be more difficult.'

Secondly, those advising third parties will be particularly mindful of this paragraph of the judgment:

‘97. Given the emphasis on fairness in all aspects of discretion under the MCA 1973 the family court may be a little more indulgent than that civil line of authority, which of course is applying different statutory criteria. However, it seems to me that where there is little other prospect of substantive relief between spouses being possible absent an order for sale then it will rarely be the case that the objections of [the] third party will prevail absent some special factor in the personal circumstances of the third party.’

Thirdly, in respect of factor (d) – whether the property has been modified or adapted in some particular way for the benefit of the third party – it is noted that in this case the property had been adapted, but an order for sale was made nonetheless. The court found at [147] that:

‘the Annexe has been adapted for the needs of an 88 year old. However, these adaptions are of a standard nature and it was not seriously argued such could not be adopted in another suitable property.’

Fourthly, factor (e) – whether by reason of the third party’s age or medical condition the fact of the sale will be particularly onerous upon them – similarly appears to have carried limited weight on the facts in this case, in spite of the third party being 88 years old.

Considered in the round, the judgment might be said to present something of an uphill struggle for third parties, where the third party’s primary position is retaining a roof over their head, rather than simply recouping a financial interest, when there are otherwise inadequate funds to meet the parties’ housing needs. ‘You risk losing your home’, seems to be the starkly apt warning.

Accordingly, third parties, or indeed a spouse whose position aligns with the third party, may well seek to emphasise the factual distinctions in their own case from those in A v N. In this case, the third party was the wife’s 88-year-old mother, whom the court had determined had a beneficial interest to the tune of only 12% in the property. She was also advantaged, in practical if not legal terms, by the fact that the wife’s intention was to pool her resources with her mother to rehouse them both; that may not be the case for many parties (13 years had passed since R moved into the matrimonial home with W and H, and often circumstances change over time).

Ultimately, the court made an order for sale, as the only practicable means of securing a sufficient lump sum for the husband to rehouse. However, the judge commented, at para 147, ‘in another case, where other capital resources existed, R’s circumstances might tip the balance against a sale but here there is simply no other option’.