KC v CO (deceased) (Orders for Sale after Death of a Party)

In 2005, the applicant (who I shall refer to as “the husband”) and the respondent (“the wife”) agreed a consent order setting out the financial arrangements that were to be applied following their divorce. The order was approved and made by District Judge Fortgang on 27 January 2005.

Under paragraph 1 of that order, the parties were to hold the family home on trust for themselves as beneficial tenants in common in equal shares. By virtue of paragraph 1(b), the family home was not to be sold without the prior written consent of both parties or further order before either (i) the youngest surviving child leaving full-time education, or (ii) the death of the wife. The order did not include a specific order for sale.

The wife died in July 2012. At that time, the parties’ youngest child was 12. By then, the wife had remarried and her new husband, NH (the children’s step-father) was living with the children in the family home. Mindful, no doubt, of his obligations towards his children, the husband took no steps at the time to recover his financial interest in the family home.

The wife died intestate and NH was granted letters of administration in 2013. Given the size of the estate (as recorded in the letters of administration) it appears likely that the entirety of the wife’s estate fell to be inherited by NH. A restriction was entered onto the Land Register in September 2013 which NH says was his way of formally recording the wife’s beneficial interest passing to him as beneficiary (rather than as personal representative of her estate).

In 2025 (by which time the youngest child was 25), the husband decided that the time had come to recover his financial interest in the family home. He applied to the Family Court (using a D11 application form and the case number from the 2005 proceedings) to “enforce” the 2005 order. The draft order he supplied with the application set out an order for sale, which would give NH first refusal to buy out his share in the family home, failing which it would be sold and the proceeds divided according to the beneficial shares set out in the 2005 order.

In response, NH, his new wife and the parties’ three children (all five of whom now live in the family home along with various grandchildren) all applied to be joined as interveners. Together, they put forward various arguments why they had acquired beneficial interests in the property and why, in any event, the husband should be prohibited from pursuing an order for sale.

The matter came before me at a directions hearing on 27 March 2026. At that hearing NH attended as personal representative of the wife’s estate. He was unable to confirm at the hearing whether the administration of the estate was complete.

I expressed concern at that hearing that a single set of solicitors purported to represent NH in his capacity as personal representative of the (potentially still extant) estate, NH in his capacity as a proposed intervener and all four other proposed interveners. There appeared to be the potential for conflicts of interest between at least some of these proposed parties. I therefore deferred any decision about whether to join some or all of the proposed interveners to the next hearing. In the meantime, I directed NH to provide a short witness statement confirming whether the administration of the wife’s estate had been completed and, in particular, what had happened (if anything) to the wife’s beneficial interest in the property.

I also questioned whether the Family Court had the power to hear the application at all – something neither party appeared to have considered – and invited the parties to provide written submissions on whether the court’s jurisdiction to make an order for sale (i) survived the death of the wife and (ii) if it did, whether it had also survived the distribution of the wife’s beneficial interest in the family home to NH (if it had, in fact, been transferred as he suggested). It is to that question that this judgment relates.

NH (as personal representative of the estate) raises two objections to the application proceeding as issued. His second objection – which can be dealt with shortly – relates to the property interests asserted by the proposed interveners, in respect of which he argues “the Matrimonial Causes Act 1973 completely lacks the statutory mechanism to determine, adjust or dismiss the equitable property claims of third parties”.

The Family Court determines third party interests in property, within financial remedy proceedings, on a daily basis. Its ability to do so, and the binding nature of its findings on third parties who have been joined to the proceedings, have not been in question since at least the Court of Appeal decision of Tebbutt v Haynes [1981] 2 All ER 238. I do not accept that this would be a reason why this application could not progress under the Matrimonial Causes Act 1973.

NH’s primary objection, however, is that the court does not have statutory jurisdiction to make/enforce an order relating to capital assets under the 1973 Act following the death of a party. While I do not accept that proposition wholesale (at least in relation to enforcement) it is something that requires closer investigation in relation to this particular application.

An application for an order for sale in matrimonial proceedings must, in the absence of a charging order, mean an order under section 24A of the 1973 Act.

The relevant parts of section 24A provide as follows:

(1)

Where the court makes an order under section 22ZA or makes under section 23 or 24 of this Act a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order, then, on making that order or at any time thereafter, the court may make a further order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion.

(2)

Any order made under subsection (1) above may contain such consequential or supplementary provisions as the court thinks fit and, without prejudice to the generality of the foregoing provision, may include—

(a)

provision requiring the making of a payment out of the proceeds of sale of the property to which the order relates, and

(b)

provision requiring any such property to be offered for sale to a person, or class of persons, specified in the order.

(3)

– (7) …

My starting point must be the recent Supreme Court decision of Unger and anr (in substitution for Hasan) v Ul-Hasan (deceased) [2023] UKSC 22.

In that case the Supreme Court confirmed that the questions the court needs to answer when deciding whether a particular right or power survives the death of a party are those set out by Lord Brandon in Barder v Caluori [1988] AC 20, who said:

“… it is unhelpful, in cases of the kind under discussion, to refer to abatement at all. The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken.

“… the answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third. The first matter is the nature of the further proceedings sought to be taken. The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both. The third matter is the applicability of section 1(1) of the [Law Reform (Miscellaneous Provisions) Act 1934]”

Before turning to Lord Brandon’s questions, however, I need to consider whether an application for an order under section 24A falls within the ratio of the decision in Unger itself.

The Supreme Court’s specific decision in Unger was that the power of a court in England and Wales to order financial relief after an overseas divorce (under Part III of the Matrimonial and Family Proceedings Act 1984), applying powers available after a domestic divorce (under Part II of the 1973 Act), can only be exercised as between living parties to a former marriage, concluding:

102.

The answer to the real question on this appeal (see para [30] above) is that on the true construction of the statutory provisions in the 1984 Act and the 1973 Act where one of the parties to an application under Part III of the 1984 Act for financial relief has died further proceedings cannot be taken. The power of a court in England and Wales to order financial relief after an overseas divorce can only be exercised as between living parties to a former marriage. Accordingly, I would dismiss the appeal.

103.

As, on their true construction, the statutory provisions in the 1984 Act and the 1973 Act create personal rights and obligations which can only be adjudicated between living parties, the issue as to whether a claim for financial relief under the 1984 Act is a cause of action which survives against the estate of a deceased spouse under s 1(1) of the 1934 Act does not arise for determination.

If, therefore, orders for sale under section 24A are considered financial relief after a divorce, the court cannot exercise that power once one of the parties has died and I would be bound to find that the application fails.

Unger was an application under the 1984 Act. The 1984 Act specifically defines “an order for financial relief” at section 12(4) as meaning “an order under section 17 or 22 below”. Section 17, in turn, says as follows:

(1)

Subject to section 20 below, on an application by a party to a marriage for an order for financial relief under this section, the court may—

(a)

make any one or more of the orders which it could make under Part II of the 1973 Act if a divorce order, nullity of marriage order or judicial separation order in respect of the marriage had been made in England and Wales, that is to say—

(i)

any order mentioned in section 23(1) of the 1973 Act (financial provision orders); and

(ii)

any order mentioned in section 24(1) of that Act (property adjustment orders); and

(b)

if the marriage has been dissolved or annulled, make one or more orders each of which would, within the meaning of that Part of that Act, be a pension sharing order in relation to the marriage;

(c)

if the marriage has been dissolved or annulled, make an order which would, within the meaning of that Part of that Act, be a pension compensation sharing order in relation to the marriage.

(2)

Subject to section 20 below, where the court makes a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order under subsection (1) above, then, on making that order or at any time thereafter, the court may make any order mentioned in section 24A(1) of the 1973 Act (orders for sale of property) which the court would have power to make if the order under subsection (1) above had been made under Part II of the 1973 Act.

Section 12(4) could have defined “an order for financial relief” as being an order under section 17(1). It did not – it simply said section 17 (or 22). By definition, then, a section 24A(1) order for sale in 1984 Act proceedings is an order for financial relief.

“An order for financial relief” is not defined in the 1973 Act (save for the limited purposes of consent orders at section 33A, which is specifically stated to apply only that section). On a proper reading of Unger, however, it is evident that the Supreme Court 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 my judgment it would be unhelpful, and contradict the Supreme Court’s approach, if the powers at section 24A applied differently depending on whether the original divorce took place in this jurisdiction or overseas. If an order for sale is an order for financial relief under 1984 Act, it seems to me it must also be one under the 1973 Act.

While Lord Brandon’s questions might have led to some interesting questions of statutory interpretation, in my judgment they do not arise because it is not open to this court to conduct its own assessment of whether the powers available under section 24A of the 1973 Act survive the death of a party.

Section 24A orders for sale fall squarely within the statutory definition of “an order for financial relief”. The Supreme Court in Unger has confirmed that such powers can only be exercised as between living parties. While the decision was strictly made in reference to the 1984 Act, a fundamental step in the Court’s logic was the conclusion that “the statutory provisions in the 1984 Act and the 1973 Act create personal rights and obligations which can only be adjudicated between living parties”.

For those reasons, I find that the court has no jurisdiction to entertain the husband’s application for an order for sale under the Matrimonial Causes Act 1973 following the death of the wife, irrespective of whether her estate has now been distributed or not.

Both parties, and the proposed interveners, acknowledge that the husband is entitled to seek an order for sale instead under section 14 of the Trusts of Land and Appointment of Trustees Act 1996.

TOLATA claims must be brought in the County Court and cannot be heard by the Family Court. At the previous hearing the husband invited me, if I found there was no jurisdiction to hear the application under the 1973 Act, to transfer the application to proceed under Part 7 or Part 8 of the Civil Procedure Rules 1998. As I said at the hearing, that is simply not possible. TOLATA claims are heard by the County Court. The TOLATA claim will be a different cause of action, under a different Act, to be heard by a different court following a different procedure. There is simply no mechanism by which the claim could be transferred.

Consequently, I strike out the application under FPR rule 4.4 as disclosing no reasonable grounds for bringing the claim. The husband will therefore need to issue a fresh claim in the County Court if he wishes to pursue an order for sale.

In line with the Transparency in the Family Courts Publication of Judgments Practice Guidance of June 2024 it is my intention to upload an anonymised version of this judgment to the National Archives once it has been formally handed down.