An order had been made in 1981 for the home not to be sold until the youngest child had attained the age of 17 ‘or further order’. The wife, who was living in the home with the children, against a judge’s determination that he had no jurisdiction to entertain her subsequent application for an order for its sale prior to that child’s 17th birthday.
Held: Her appeal was allowed. Even though the property adjustment order had been made before section 24A came into force, it provided the vehicle by which the wife could apply for the ‘further order’ which the property adjustment order had envisaged.
Oliver LJ held that orders deferring sale of jointly held property, in the common Mesher form, have an obvious need for scope to adjust them to work out the order. Whilst an application further to delay sale would, he held, ordinarily amount to an impermissible variation, an application for an earlier sale need not do so, and often would not. He instanced examples such as the resident spouse going bankrupt, or wishing to emigrate, or one of the residents becoming incapacitated.
Judges:
Oliver LJ
Citations:
[1986] Fam 38
Statutes:
Matrimonial Causes Act 1973 24A
Jurisdiction:
England and Wales
Cited by:
Cited – Birch 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.
Family
Updated: 03 September 2022; Ref: scu.643870