There are problems, inevitably, if only a small group permits itself to to draft official precedent orders, especially ‘mandatory’ orders. Such official ‘precedents’ may be wrong in law – ie unlawful; but who is to say if the goup is lead by a High Court judge. In that context that judge’s views cannnot be challenged; and if they are outlaw, they may cause severe injustice. One of teh orders in the present clutch of ‘standard orders’ illustrates this – in my opinion; and my opinion does not begin to vie with the certainties of Mostyn J
By many standards to deprive a person of his home is a severe step. It engages issues under European Convention 1950 Arts 6 and 8, and maybe others. A judge who takes such a step should tread carefully. Mostyn J – for whom I have massive admiration – cannot ever be praised for the subtlety of his tread. Shades of grey rarely trouble him. Quaint hyperbole embellishes his certainties.
The law in this area is defined by Matrimonial Causes Act 1973 s 24A(1) provides for an order for sale:
‘Where the court makes under section 23 [in effect, a lump sum order] or 24 [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’.
In terms of ordinary English, the passages in italics seem not too difficult. The order for sale is contingent on the lump sum or property adjustment order. It is not free-standing. Family Procedure Rules 2010 recognises this: the s 24A order is not a financial remedy order. The draughtsperson understands that it is contingent.
That a spouse should in law normally have time – even only a short time – to comply with the order, was confirmed by Coleridge J in V v V (Financial Relief)  2 FLR 697, Coleridge J. A couple of years before the V v V (I acted for Mrs V in that case: the s 24A(1) finding was the high-point of her appeal) I had retained Mostyn J to represent a husband on an appeal where the district judge had ordered him to sell his house (he had acted in person at first instance); and, though he could buy out W, she insisted on her pound of flesh: he had to sell his house. It is not breaching confidence to say that Mostyn QC said to H that because he had said so in case of le Foe, s 24A(1) meant an immediate sale was the law (ie no contingencies applied) then that was the law. Like Humpty Dumpty (of the time) a judge – Mr Mostyn QC, sitting as a High Court judge – could say what he liked, and that became the law. (En pasant he kindly commended to the client my writing ability.)
V v V has been decided since le Foe, yet still the ‘draft order’ is as follows:
‘The [family home] / [property/ies] [as in definition above] shall be sold forthwith on the open market for sale and the following conditions will apply:
- the property shall be placed on the open market for sale immediately…(itlaics supplied)
Now I would hope that most readers would say that that is not, in law, an order which can be made. Coleridge J, following the words which Parliament enjoined upon him – with a little encouragement from me – said that ‘forthwith’ could not be. The same goes for sale ‘immediately’. The Resolution precedents go with Parliament and the common law (per Coleridge J). The President’s intended draft rules, like Cnut defying the waves, continue their old unlawfulness. And if this is Mostyn J (on occasion, the scourge of unlawfulness eg in UL v BK (Freezing Orders: Safeguards: Standard Examples)  UKHC 1735 (Fam)), I can only echo Luke 23: 34, and ask pity on him, for (to adapt the words slightly, and respectfully) ‘he knows [perhaps] not what he does’.