Omielan v Omielan: CA 30 Jul 1996

H and W entered into a consent order which related in particular to their home, vested in their joint names, in which the wife wished to continue to reside with the children of the family. Part of the order was a property adjustment order: it was, specifically, a variation of settlement order under which the proportions of the beneficial ownership of the home were recast so as to become 25% for the wife and 75% for the children. But there was also an order for sale of the home under section 24A of the Act. It provided that the home be sold but only on the occurrence of any one of four trigger events, including the event that the wife had cohabited with another man for at least six months. Shortly after the order was made the husband and wife executed a deed of trust under which they declared themselves to be trustees of the home on the above terms. Subsequently, on discovering that the wife had cohabited with another man for at least six months, the husband applied for an order that the sale of the home should take place at once; and the wife countered with an application under section 31(1) and (2)(f) of the Act for the order for sale of the home to be varied so as to postpone it until the youngest child, then aged nine, attained the age of 18.
Held: The husband’s appeal against a judge’s refusal to dismiss the wife’s application for variation was allowed. There were patently no grounds for exercising the jurisdiction to vary the order for sale. Power exists to vary a condition of sale of house on divorce but not the main order.
Thorpe LJ pointed out that the vested beneficial interest of the children in reversion had, once the wife had cohabited for six months, become an interest in possession; and that she was seeking to put it back into reversion.


Thorpe, Butler-Sloss and Peter Gibson LJ


Times 30-Jul-1996, [1996] 2 FLR 306


Matrimonial Homes and Property Act 1981


England and Wales

Cited by:

CitedBirch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.


Updated: 01 September 2022; Ref: scu.84452