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 the Act of 1882, but ‘The power [under s.17] to order a sale of the former matrimonial home will not include a power to order possession of it. Nor should it do so during the subsistence of the marriage. To make an order, as the judge did here, for the husband to deliver up vacant possession is to make an order restricting or terminating the rights of occupation which are conferred upon the husband by virtue of s.1 of the Matrimonial Homes Act 1983 . . The judge was not asked to consider the [Act of] 1983, but she should have been. The respondent should not have been required to vacate the matrimonial home save and except where the court has taken into account and balanced the factors set out in s.1(3) of the 1983
Ward LJ
Times 29-Dec-1997, Gazette 04-Feb-1998, [1997] EWCA Civ 3050, [1998] 1 FLR 470, , [1998] Fam Law 311, [1999] Fam 65, [1998] 1 All ER 977, [1998] 3 WLR 277
Matrimonial Causes Act 1973 25, Married Women’s Property Act 1882 18
England and Wales
Cited by:
CitedSmith v Smith CA 2-Dec-2009
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 . .

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Updated: 30 April 2021; Ref: scu.90481