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(Chancery Division; HHJ Pelling QC; 17 April 2008)
Following the breakdown of the marriage a property adjustment order was made by consent; under the order the wife held two thirds of the matrimonial property and the sale of the property was to be postponed to one of the following events: the wife's remarriage; her cohabitation in a stable relationship; her service of notice that she required the property to be sold, or her death. Some years after the husband became bankrupt, the wife attempted to rely on the terms of the consent order to prevent the trustee from being granted an order for sale. The Court of Appeal rejected the wife's arguments, ruling that as any person with an interest in property was entitled to apply for an order for sale under Family Law Act 1996, s 14, the husband would have been and the trustee in bankruptcy continued to be entitled to apply for such an order. At a hearing of the trustee's application for possession and an order for sale the wife asserted that exceptional circumstances justified its dismissal, including: the trustees' delay; the existence of the consent order; the wife's reliance on that order; and the existence of a 'personal remedy' against the trustee.
The judge granted the trustee possession and an order for sale. Although there had been delay, it had not materially and disproportionately affected the wife's interest. Given that the consent order had followed a form commonly adopted in matrimonial proceedings at the time, the mere existence of the consent order did not constitute an exceptional circumstance. It had not been established that the trustee had ever advised the wife that because of the consent order the property could remain her home, but in any event, no detriment resulting from such advice had been proved. No personal remedy against the trustee existed for breach of the agreement between the husband and the wife that the wife should occupy the property unless certain events occurred.
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