Derhalli v Derhalli
Nathaniel Duckworth and Nigel Dyer QC of 1 Hare Court appear for the successful Respondent to a second appeal in Derhalli v Derhalli [2021] EWCA Civ 112, a case concerning the interpretation of a consent order made in divorce and financial remedy proceedings.
If a consent order provides for the matrimonial home, of which the husband is the sole legal and beneficial owner, to be sold, but is silent as to whether the wife can continue to reside there until a sale is achieved, can the husband evict her or make her pay rent or damages for use and occupation if she stays? HHJ Gerald said ‘yes’, but Fancourt J said ‘no’. Lord Justice Males gave permission for a second appeal on the basis that the answer was highly likely to be 'yes', but the Court of Appeal (King, Asplin and Arnold LJJ) have now said 'no'. The Court of Appeal has exhorted practitioners to make clear and express provision about occupation rights, in consent orders made in financial remedy proceedings, in the future.
If an order made in financial remedy proceedings gives rise to property law issues at the point of implementation or requires enforcement (eg. by an order for possession), is it open to a party who would rather have their claim determined by a judge with a chancery background to issue proceedings in the County Court (as the Appellant had chosen to do here) instead of going back to the Family Division or the Family Court where the order was originally made? King LJ said 'no': any such claim should be determined by a specialist family court, with powers under the Matrimonial Causes Act 1973, not by the County Court. But Asplin and Arnold LJJ preferred to keep their powder dry as to whether or not proceedings in the County Court would be appropriate in another case.
The decision will be useful reading for properly law practitioners and family law practitioners alike.
Nathaniel Duckworth and Nigel Dyer QC of 1 Hare Court were instructed by Sarah Jane Boon at Charles Russell Speechlys LLP.
The full judgment is here.
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