KC v CO (Deceased) (Orders for Sale after Death of a Party) [2026] EWFC 165 (B)

Judgment date: 18 June 2026

https://caselaw.nationalarchives.gov.uk/ewfc/b/2026/165

DDJ Harrop. The husband’s application for an order for sale under s 24A(1) of the Matrimonial Causes Act 1973 was struck out under FPR 4.4(1)(a), in that its availability had not survived the death of the wife. It remained open to the husband to seek an order for sale under s 14 of the Trusts of Land and Appointment of Trustees Act 1996.

Facts

In 2005, a consent order was approved between H and W regarding their financial arrangements post-divorce. Under paragraph 1 of that order, H and W held the family home on trust for themselves as beneficial tenants in common in equal shares. The order provided that the home would not be sold without both parties’ written consent or further order before either (i) the youngest surviving child left full-time education, or (ii) the death of W.

W died intestate in July 2012. She had remarried by then; her new husband (NH) had lived with W and her children in the family home.

In 2025, H applied to the Family Court to ‘enforce’ the consent order by seeking an order for sale under s 24A(1) of the Matrimonial Causes Act 1973. NH, his new wife, and the parties’ three children applied to be joined as interveners, arguing that they had acquired beneficial interests in the property and that H should be prohibited from pursuing an order for sale.

Discussion

At a directions hearing on 27 March 2026, DDJ Harrop questioned whether the Family Court had jurisdiction to entertain the application. He invited written submissions on whether the court’s jurisdiction to make an order for sale survived W’s death and, if so, whether it survived any transfer of W’s beneficial interest to NH.

NH submitted that:

1. The Matrimonial Causes Act 1973 lacks the statutory mechanism to determine, adjust, or dismiss third parties’ equitable property claims.
2. The court lacked statutory jurisdiction under the 1973 Act to make or enforce orders relating to capital assets following the death of a party.

Held

DDJ Harrop struck out H’s application under FPR 4.4(1)(a) as disclosing no reasonable grounds for bringing the claim. Although he did not accept NH’s submission that the court lacked the ability to determine third party interests in property (citing Tebbutt v Haynes [1981] 2 All ER 238), DDJ Harrop held that an application for an order for sale under s 24A of the 1973 Act does not survive the death of a party.

Per Lord Stephens in Unger & Anor (in substitution for Hasan) v Ul-Hasan [2023] UKSC 22 at [102]–[103], statutory powers enabling financial relief under the Matrimonial and Family Proceedings Act 1984 and the Matrimonial Causes Act 1973 are exercisable only between living parties to a former marriage.

DDJ Harrop held that an order under s 24A(1) of the 1973 Act constitutes financial relief, which is defined in s 12(4) of the 1984 Act as ‘an order under s 17 or 22 below’. Section 17(2) of the 1984 Act includes ‘any order mentioned in s 24A(1) of the 1973 Act’ as also being available to the court when it makes a secured periodical payments order, an order for the payment of a lump sum, or a property adjustment order under s 17(1) of the 1984 Act.

An order for financial relief is largely undefined in the 1973 Act. However, the Supreme Court in Unger proceeded on the basis that the powers conferred by the 1973 Act and the 1984 Act form a coherent statutory scheme of personal financial rights and obligations arising on divorce. As such, if an order for sale is an order for financial relief under the 1984 Act, ‘it must also be one under the 1973 Act’.

H’s recourse was to issue fresh civil proceedings for an order for sale under s 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) in the county court. A TLATA claim represents ‘a different cause of action, under a different Act, to be heard by a different court following a different procedure’.

This judgment has not been certified as citable pursuant to the Practice Note (Citation of Cases: Restrictions and Rules) [2001] 1 WLR 1001.