Choosing the correct court for divorce proceedings

Although we often talk about ‘the Court’, there are in fact many different courts in this country. A recent case led to a useful observation from a senior judge about which court should be used to interpret the provisions of an order made within divorce proceedings.

The couple in this case agreed what to do with their finances. One of the provisions was for the family home to be sold. The wife and the children were living in it but unfortunately, following the slowdown of the property market in 2016, the property didn’t sell. 

The husband (H) applied to the County Court for possession proceedings when the wife (W) refused to vacate the property in advance of a sale. He claimed rent for the period of her inhabiting the property. The County Court found that she should pay rent until she left, but W appealed. 

The judge on appeal held that the County Court was wrong. The proper interpretation of the divorce order was that W could live rent free in the property until it was sold subject only to her paying the bills. 

H then appealed to the Court of Appeal but got short shrift from that court. The Court of Appeal concluded that it was obvious that a proper interpretation of the order was for W to be able to live rent free. One of the judges made the important observation that:-

1. It would be sensible when providing for an order for sale to set out the terms of any spouse’s occupation pending sale;
2. H should never have applied to the County Court. Disputes about the interpretation of a financial order in divorce should be made to the Divorce Court.

The judge’s observations may seem obvious, but clearly they weren’t to H and his lawyers when they made their application to the County Court in the first place. 

We are always happy to discuss matters with you and offer a free 15 minute initial telephone call. If you would like to take advantage of that, please contact our specialist divorce lawyers. 

I can be contacted on 01206 217320 or philip.hoddell@birkettlong.co.uk.