• Sonia Rola

Divorcing wife entitled to stay in family home until it was sold

Divorcing wife entitled to stay in family home until it was sold

The Court of Appeal has ruled that a wife in divorce proceedings had been entitled to remain in the family home until it was sold as part of the financial settlement.

The court heard that the couple had lived in the matrimonial home with their two children. They were wealthy and the home, which was registered in the husband's name, was valuable.

In 2014 the husband moved out and the divorce was acrimonious. In 2016 a financial remedy order made by consent provided for the immediate sale of the home and the payment to the wife of lump sums in full and final settlement of her claims arising out of the marriage.

There was no specific provision in relation to the occupation of the property pending sale, but the wife agreed to pay all outgoings.

In March 2017, the husband served a notice on the wife requiring her to vacate the home or to pay rent of £5,000 per week for her continued occupation. When she did neither, the husband started court proceedings, seeking possession of the home and damages for trespass.

A High Court judge held that the wife was entitled to stay in occupation until the house was sold, which did not happen until March 2019.

The husband appealed, submitting that the judge had been wrong in setting a precedent implying a licence for one partner to occupy until sale, irrespective of the legal ownership of the property.

The Court of Appeal has upheld the judge’s decision.

It held that the judge had been entitled to find that there was no foundation for saying that the wife had been granted a licence, and that she had become a trespasser liable to pay damages.

The judgment had neither set a precedent nor implied a licence to occupy into the order.

What was known to both parties at the time was that the agreement had been reached whereby the matrimonial home was to be put on the market and that the wife would take over the running costs. It was anticipated that the house would sell quickly.

It was not known that the Brexit referendum result would have serious consequences for the housing market, and the court could not take into account the fact that the property remained unsold for over two years.

Accordingly, the judge had been entitled to conclude that the effect of the parties' agreement was that the wife was entitled to stay in occupation until it was sold.

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 02080040065, by email at hello@southgate.co.uk or using the form below.

Case Citations: [2021] EWCA Civ 112 DERHALLI v DERHALLI (2021) CA (Civ Div) (King LJ, Asplin LJ, Arnold LJ)

The contents of this article are general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.

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