The Family Court has concluded that it had no jurisdiction to hear a man’s application for an order for sale of the former matrimonial home following his ex-wife’s death, finding that personal rights and obligations arising under the Matrimonial Causes Act 1973 can only be adjudicated between living parties.
In 2005, the husband and wife had agreed a consent order setting out the financial arrangements following their divorce. The order included an agreement that the family home would not be sold without both of their consent, or without further order, until their youngest child left full-time education or the wife died.
The wife had died in 2012, when their youngest child was 12. At that time the husband had not attempted to recover his interest in the family home, in which the children lived with the wife’s new husband. He did not seek to enforce the consent order until 2025. The wife’s new husband, his new wife and the children argued that they had acquired beneficial interests in the property and that, in any event, the husband should be prohibited from pursuing an order for sale. The Court raised the question of whether it had the power to hear the application at all.
The Court’s starting point was the Supreme Court’s decision in Unger and Another v Ul-Hasan (deceased) and Another, in which it had ruled that the courts’ powers to order financial relief after an overseas divorce under the Matrimonial and Family Proceedings Act 1984 can only be exercised between living parties to a former marriage. The decision in Unger had stated that the statutory provisions in both the 1984 Act and the 1973 Act created personal rights and obligations that could only be adjudicated between living parties. Therefore, if orders for sale under Section 24A of the 1973 Act were considered orders for financial relief, the Family Court would be bound to find that the application failed.
The Court observed that orders for financial relief are not defined in the 1973 Act, but orders for sale fall within the definition contained in the 1984 Act. On a proper reading of Unger, the Supreme Court had proceeded on the basis that the powers conferred by the 1973 Act and the 1984 Act form a coherent statutory scheme of personal financial rights and obligations arising on divorce. In the Family Court’s judgment, it would be unhelpful and would contradict the Supreme Court’s approach if the powers in Section 24A applied differently depending on whether the divorce had taken place in this jurisdiction or overseas. If an order for sale was an order for financial relief under the 1984 Act, it must also be one under the 1973 Act. The Family Court concluded that it had no jurisdiction to entertain the application.
