What Happens When One Party Will Not Cooperate With Court Order To Sell Family Home?

The enforcement of a sale order in family law can become particularly complicated when one spouse refuses to cooperate, especially when they remain in occupation of the former family home. The case of WZ v HZ [2024] EWFC 407 provides valuable guidance on handling such situations, where a spouse in occupation obstructs a sale despite a clear Court Order. In this article, we will examine the key aspects of this case, the legal principles involved, and how family law solicitors can use the insights gained from the judgment to enforce a sale of the family home effectively, even when a home rights order is in place.

Background of WZ v HZ [2024] EWFC 407

The facts of WZ v HZ are not uncommon in family law disputes. The wife (W) had been ordered by the Court in 2021 to sell the former matrimonial home to release funds for her rehousing, including a £650,000 fund plus costs. However, for over three years, she refused to cooperate with the sale. She employed various obstructive tactics, including damaging the sale process by knocking down the ‘For Sale’ sign, lying about COVID testing, and flooding the Court and her husband’s (H’s) solicitors with numerous applications. Despite these efforts, the Judge ultimately determined that W’s actions were in defiance of the Court Order, and the enforcement process began in earnest.

This case highlights the difficulties practitioners face when one party in family proceedings is unwilling to comply with court orders. The legal principles that emerged from this case can offer a path forward for solicitors seeking to resolve similar disputes.

Legal Considerations for Enforcing a Sale Order

When a Home Rights Order is in place, and one spouse refuses to vacate or cooperate with the sale of the family home, the other spouse may be left with limited options for enforcement. In WZ v HZ, H sought possession of the family home and the variation of spousal maintenance payments in light of W’s behaviour. To achieve this, the Court had to consider several key legal provisions, including those under the Family Procedure Rules (FPR) 9.25 and the Thwaite jurisdiction.

The Thwaite Jurisdiction

One of the most significant legal concepts that arose from WZ v HZ was the application of the Thwaite jurisdiction. Thwaite jurisdiction, which derives from Thwaite v Thwaite [1981] 2 FLR 280, allows the Court to vary financial orders when the order remains executory, and a party’s conduct has undermined the intention of the original judgment. In WZ v HZ, the wife’s obstruction of the sale frustrated the original order, which was intended to provide her with rehousing and financial provision. As such, the Judge determined that the Thwaite jurisdiction could be invoked to remedy the situation and address the unfairness caused by W’s actions.

The Thwaite jurisdiction is especially relevant in cases involving the sale or transfer of property. When one spouse is in occupation and capable of frustrating the sale process, the Court may adjust the financial provisions to address the impact of the delay. In this case, the Judge reduced W’s housing provision to £545,000, freeing up funds to cover the costs incurred by H in trying to enforce the original order, including £130,000 in costs related to enforcement actions.

This case reinforces the fact that when a party’s conduct substantially impedes the enforcement of a financial order, the court has the authority to modify the provisions to restore fairness. The Thwaite jurisdiction provides a necessary remedy when one spouse’s actions frustrate the intent of the original order.

Variation of Spousal Maintenance

Another important aspect of WZ v HZ was H’s application to reduce the periodical spousal maintenance payments. Given the wife’s conduct, the Judge revisited the quantum of maintenance and reduced the duration. This application was based on the findings regarding W’s earning capacity and her unwillingness to cooperate with the court’s orders.

This part of the judgment emphasises the importance of considering a spouse’s conduct in maintaining or varying spousal maintenance. A party that refuses to cooperate with a sale order may face reductions in maintenance payments, especially if their actions are deemed unreasonable or obstructive.

Possession of the Family Home

The question of whether to order possession of the family home to facilitate the sale was central to the proceedings. Over the three years following the original order, no potential purchaser had been able to view the property due to W’s refusal to cooperate. DJ Doman considered this delay under FPR 9.25, which provides the power to make orders to deliver possession. While the rule does not provide specific criteria for its exercise, the judge was guided by the overriding objective of family law and the balance of harm test under section 33 of the Family Law Act 1996. The Judge also took into account the decision in BR v VT [2015] EWHC 2727, which considered the impact of a spouse’s refusal to cooperate with a sale order.

The Judge ultimately decided that it was appropriate to order possession of the home to facilitate the sale. This decision was grounded in the significant harm caused by W’s obstruction, which had already delayed the enforcement of the original order and caused financial loss to both parties.

This aspect of the case serves as a reminder that when one party obstructs a sale order, the court can consider ordering possession as a necessary step to enforce compliance. The delay in this case caused significant financial strain, and the court was willing to act decisively to ensure the order was enforced.

The Role of Evidence in Enforcing a Sale

Enforcing a sale order in the face of resistance is not without its challenges. As seen in WZ v HZ, gathering the evidence necessary to demonstrate that one party is frustrating the sale process is critical. In this case, the wife’s actions, including knocking down the ‘For Sale’ sign and lying about the impact of COVID-19, were key pieces of evidence that helped to demonstrate her obstructive conduct.

Family Law Solicitors involved in similar cases should ensure that they maintain a comprehensive record of all efforts to secure compliance, including emails, letters, and records of court hearings. Such evidence can be crucial in persuading the court to take action to enforce the sale, particularly when invoking the Thwaite jurisdiction or seeking possession of the property.

It is also important for solicitors to assist the court in cutting through the “noise” created by obstructive conduct and presenting a clear case for enforcement. As WZ v HZ demonstrates, meticulous preparation and a well-documented case can significantly impact the court’s decision-making process.

The Impact of WZ v HZ on Future Cases

The judgment in WZ v HZ offers valuable insights for family law practitioners. The case shows that the Thwaite jurisdiction can be effectively used to address situations where one spouse’s conduct frustrates the intention of a financial order, particularly in cases involving the sale of a family home. It also reinforces the importance of considering the conduct of both parties when determining spousal maintenance and possession of the family home.

For solicitors, the case highlights the need to gather and present strong evidence when attempting to enforce a sale order. Additionally, the case reinforces the importance of acting swiftly to prevent further delay in the enforcement process.

Conclusion

The enforcement of a sale order in family law, particularly where a home rights order is in place, can be a complex and contentious process. The case of WZ v HZ provides crucial guidance on how to handle a spouse who obstructs the sale of the family home, demonstrating the use of the Thwaite jurisdiction, variations to spousal maintenance, and orders for possession. Family law practitioners can take valuable lessons from this case, ensuring that they gather comprehensive evidence and adopt a proactive approach when faced with similar challenges in the future. The judgment serves as a reminder that the courts are willing to take decisive action to enforce fair financial provision and facilitate the timely resolution of disputes. If you have any questions regarding this article, please call our office today on 02476 231000 or emailenquiries@askewslegal.co