A wife has been refused an interim order for the sale of the matrimonial home as part of her divorce proceedings. The Family Court stated it didn’t have the power to make such an order. 

Legal Context 

The wife had applied under the Married Women’s Property Act 1882 for an interim order for the sale and vacant possession of the home, in which both she and her husband had a legal and beneficial interest. The issue was whether the court’s jurisdiction to order vacant possession was limited by the Family Law Act 1996. 

Court’s Decision 

The recorder hearing the case held that the court’s powers were limited by the 1996 Act and that it had no jurisdiction to order vacant possession. If the husband had a legal or beneficial interest in the property, the Act empowered the court to suspend or restrict, but not to extinguish, his right to occupy it. Conversely, if his right to occupy derived solely from “home rights” arising from the marriage, the court could restrict or terminate it. 

Outcome 

The wife was ordered to pay the husband’s costs of the application.