The married couple owned a property as tenants in common. The husband had moved out and, anticipating divorce proceedings, sought an order for the sale of the house citing his inability to sustain the very considerable mortgage payments. The wife said that it was inappropriate to use the 1996 Act when divorce proceedings were anticipated.
Held: The wife’s appeal failed. The application here had been made at a point where capital orders were otherwise unavailable to the husband, though ‘confronted with an application under TOLATA between separated spouses, the court should embark upon the discretionary exercise by asking itself whether the issue raised by the application can reasonably be left to be resolved within an application for ancillary relief following divorce. It is in principle much more desirable that an issue, as here, about sale of the home should be resolved within an application for ancillary relief. ‘ The wife had already obstructed the the decree nisi by more than six months. Apart from a recent receipt, the husband’s main asset was his interest in the house.
Wilson LJ said: ‘Our society in England and Wales now urgently demands a second attempt by Parliament, better than in the ill-fated Part II of the [Family Law Act 1996], to reform the five ancient bases of divorce; meanwhile, in default, the courts have set the unreasonableness of the behaviour required to secure the success of a petition on the second basis, namely pursuant to section 1(2)(b) of the Act of 1973, even when defended, at an increasingly low level.’
Sir Mark Potter P, Wilson LJ, Rimer LJ
[2009] EWCA Civ 1297, Times 08-Jan-2010, [2010] Fam Law 142, [2009] NPC 138, [2010] WTLR 519, [2010] 1 FLR 1402
Bailii
Trusts of Land and Appointment of Trustees Act 1996 14, Married Women’s Property Act 1882 17, Matrimonial Causes Act 1973 25
England and Wales
Citing:
Cited – Tee v Tee, John Arthur Hillman Co CA 22-Mar-1999
The wife and her second husband occupied a property in the joint names of herself and of her first husband, who, following their divorce, had applied under the Act of 1973 for a lump sum order reflective of his equal beneficial interest in it to be . .
Cited – Fielding v Fielding CA 1977
The wife, following divorce, applied for a lump sum order to be made against the husband but then she added a claim under s.17 of the Act of 1882 for a declaration that she had an interest, for which the husband should account to her, in the assets . .
Cited – Wicks v Wicks CA 29-Dec-1997
A court has no power to make an interim order for the purchase of a house for the wife and children pending determination of the overall ancillary application. The result sought by the wife could have been achieved by application under section 17 of . .
Cited by:
Cited – Owens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .
Cited – Owens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .
Lists of cited by and citing cases may be incomplete.
Trusts, Family
Updated: 01 November 2021; Ref: scu.381716
