ANCILLARY RELIEF: F v F [2007] EWCA Civ 29

31 JAN 2007

(Court of Appeal; Ward and Wilson LJJ; 31 January 2007)

A former business partner of the husband had, following her intervention in the financial relief proceedings, been granted a charge over the former matrimonial property equivalent to 17% of the gross proceeds of sale. At the time the charge was made the wife and the three children had been living in the property and the order stated that the charge over the property would not be exercisable until either (i) November 2012, or (ii) the wife had remarried, or cohabited with someone as man and wife for 12 months. Subsequently the children all moved out to live with the husband. The former business partner sought to enforce the charge, arguing that the order had been incorrectly drafted and should have been worded so that the charge would be exercisable if the property were no longer needed to provide the children with a home. The husband had registered a unilateral notice at the land registry, supposedly in relation to his claim against the wife for financial provision for the children. Because of pressure of business it was not possible for the original judge to hear the case; eventually another judge amended the order under the slip rule, postponing enforcement of the charge for 6 months to give the wife time to raise the money; the husband's notice, which had made it more difficult for the wife to raise a loan against the house, was to be removed. In a proviso to the order, if the wife could persuade the court that she had used her best efforts to raise the entire sum and had paid over whatever sum she had raised, enforcement of the charge could be further suspended.

The original order had been misdrafted and could be amended under the slip rule. The original judge had intended that the charge should be postponed until the house was no longer required as a home for the petitioner and at least one of the children; the charge would therefore be enforced if the petitioner wife were living there alone. The subsequent amendment had itself been misdrafted, and would have to be properly drawn. It had been reasonable to allow the wife 6 months in which to raise the money, and was now reasonable to allow an extension of 4 weeks in view of the appeal and further difficulties created by the husband. However, the court had no jurisdiction to suspend enforcement of the charge upon payment of a lesser sum. The court had limited discretion to postpone a sale to give the chargor reasonable time to discharge the mortgage debt, but once the event entitling foreclosure had occurred then the court could not substantially change the terms of the charge.

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