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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> BR v VT (Rev 1) [2015] EWHC 2727 (Fam) (02 October 2015) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2015/2727.html Cite as: [2015] EWHC 2727 (Fam), [2016] 2 FLR 519, [2015] Fam Law 1458 |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
BR |
Applicant |
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- and - |
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VT |
Respondent |
____________________
Valentine Le Grice QC (instructed by Stewarts Law) for the Respondent
Hearing date: 24 Sep 2015
____________________
Crown Copyright ©
Mr Justice Mostyn:
"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 Section 1 of the Matrimonial Homes Act 1983. As Lord Hailsham of St Marylebone said in Richards -v- Richards [1984] 1 A.C. 174, 199H:-
"Where, as here, Parliament has spelt out in considerable detail what must be done in a particular class of case it is not open to litigants to bypass the special Act, nor to the courts to disregard its provisions by resorting to the earlier procedure, and thus chose to apply a different jurisprudence from that which the Act prescribes. Any other conclusion would, I believe, lead to the most serious confusion. The result of a particular application cannot depend on which of two alternative statutory provisions the applicant invokes, where one is quite general and the other deals in precise detail with the situation involved and was enacted at a time when the general provision already existed."
The judge was not asked to consider the Matrimonial Homes Act 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 Section 1(3) of the 1983 Act."
"It is not for us to question the observation [in Wicks v Wicks] that the power to order a sale under s.17 of the Act of 1882 does not include a collateral power to order that vacant possession of it be given on or for the purposes of the sale. What is clear, indeed accepted by Mr Wilson, is that under s.13 of TOLATA there is power in effect to order that vacant possession of a property be given, whether on sale or otherwise. So, to the extent that Wicks is the peg on which Mr Wilson seeks to hang his argument that the husband needs to satisfy the requirements of s.33 of the Act of 1996, being the successor to s.1 of the Act of 1983, the peg cannot hold the argument and breaks from the wall at once. One may say, broadly, that it would be surprising if an order that in effect a spouse should give vacant possession of a matrimonial home under TOLATA were to be made in circumstances in which the applicant could not have secured an occupation order. But I have already stressed the width of the mandatory enquiry under TOLATA; and Mr Wilson's submission that the recorder was required in law to conclude that an occupation order should be made against the wife is in my view invalid. Nor does Mr Wilson wrestle convincingly with the recorder's further observation that, had such a conclusion been requisite, it would have been apt."
Monies in | |
Husband's gross salary | 284,247 |
Advance from employers | 43,262 |
net payment by husband's friend | 18,300 |
345,809 | |
Say | 346,000 |
Monies out | |
Mortgage on home | 60,000 |
sums paid to wife | 40,000 |
bills and other expenses on home | 36,000 |
Husband rent (paid by friend) | 25,000 |
Husband bills at his flat | 6,000 |
school fees paid | 10,000 |
legal costs paid by husband | 11,000 |
188,000 | |
unaccounted | 158,000 |
It is to be noted that the husband's living expenses are not reckoned in the above calculation.
Value of home | 2,470,000 |
sale costs | (35,000) |
Mortgage | (1,203,319) |
loan from sister | (517,500) |
unpaid legal costs | (310,000) |
tax due 31 December 2015 | (45,869) |
tax due 31 January 2016 | (60,593) |
tax due 31 July 2016 | (60,593) |
Debt to business partner for tax | (45,000) |
Debt to sister for tax | (38,000) |
loan from employer | (43,262) |
credit card debts | (5,000) |
Residue | 105,864 |
I have ignored the debt due to the husband's friend of £18,300 as I am not satisfied that this is in fact repayable.
Husband net earnings | 163,000 |
school fees | (56,000) |
mortgage on home | (60,000) |
bills and other expenses on home | (36,000) |
Husband rent | (25,000) |
H bills at his flat | (6,000) |
Shortfall | (20,000) |
The parties are in a position of serious revenue deficit before a penny has been spent on meeting their day to day living expenses or those of the children. Even if the expenses on home were reduced significantly there would still be a shortfall. If the position continues then debts will mount and bankruptcy looms.
(a) the housing needs and housing resources of each of the parties and of any relevant child;
(b) the financial resources of each of the parties;
(c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and
(d) the conduct of the parties in relation to each other and otherwise.