Few things are as frustrating in family law as a party who simply refuses to comply with court orders—particularly when it involves selling the former matrimonial home (FMH). The case of WZ v HZ [2024] EWFC 407 (B) is a prime example of the legal mechanisms available when one spouse obstructs a court-ordered sale.
This case is also notable for the court’s use of the Thwaite jurisdiction, which allows variations to existing financial remedy orders when circumstances change or a party frustrates their implementation. Below, we explore the key lessons from this case and practical takeaways for family law practitioners.
The Facts: A Sale Stalled by One Party
WZ (the wife) and HZ (the husband) had been locked in financial remedy litigation for years. A final order had been made in 2021, which required the sale of the former matrimonial home to provide the wife with funds to meet her housing needs. The order anticipated that the FMH would be on the market within three months and sold within six months.
However, three years later, the house remained unsold, and the wife continued living there rent-free while the husband paid the mortgage and maintenance. The husband accused the wife of deliberately frustrating the sale by refusing access to estate agents, rejecting reasonable offers, and even removing the ‘For Sale’ sign.
Faced with ongoing delays, mounting legal costs, and financial pressure, the husband returned to court seeking:
- An order for possession of the FMH, allowing him to take control of the sale.
- A Thwaite variation, arguing that the delay had resulted in a financial windfall for the wife, and the court should adjust the division of proceeds.
The Court’s Approach
- Ordering Possession: A Rare but Necessary Step
The court acknowledged that it had tried everything to enforce the sale. Previous orders had given the husband sole conduct of the sale, but the wife’s obstruction had rendered this ineffective.
Citing Derhalli v Derhalli [2021] EWCA Civ 112, the judge confirmed that the court has the power to grant possession under FPR 9.24, which allows the court to enforce orders under Section 24A of the Matrimonial Causes Act 1973. This power enables the court to remove an obstructive party from the home to ensure compliance with a sale order.
🔹 Lesson for practitioners: If a party repeatedly frustrates a sale, a possession order may be the only viable enforcement tool. This case shows that the courts are willing to take robust action when necessary.
- Thwaite Jurisdiction: Adjusting Orders to Reflect Reality
The Thwaite jurisdiction, derived from Thwaite v Thwaite [1981] 2 FLR 280, allows courts to vary the terms of an executory order (one that has not yet been implemented) to achieve fairness.
In this case, the court found that:
- The wife had benefited unfairly from delaying the sale, as property prices had risen significantly.
- The original order assumed a sale in 2021, meaning the husband was now paying much more than intended.
- The original division of proceeds was no longer fair, given the wife’s obstruction.
The court ruled that the increase in the sale price should not benefit the wife entirely. Instead, a portion of the additional equity would go toward covering the husband’s legal fees and outstanding maintenance obligations.
🔹 Lesson for practitioners: The Thwaite jurisdiction is a powerful tool in financial remedy cases where one party frustrates implementation. It ensures that delays do not unfairly enrich the obstructive party.
Key Takeaways for Family Lawyers
- Enforcing Sales: Courts Will Step In
- If a party refuses to cooperate, courts can grant possession orders to remove them from the property.
- Even where a party is living in the FMH, they cannot indefinitely obstruct a sale.
- Thwaite Variations: A Safety Net for Changing Circumstances
- Orders that remain executory can be adjusted if circumstances change.
- Deliberate obstruction can result in a financial penalty, ensuring the obstructive party does not benefit from their own misconduct.
- Acting Early to Avoid Costly Litigation
- This case took three years to return to court, during which time both parties incurred significant legal costs.
- Had the husband applied earlier for enforcement measures, he may have avoided much of the financial and emotional toll.
Final Thoughts: The Cost of Non-Compliance
WZ v HZ [2024] highlights the perils of failing to comply with financial remedy orders. For parties tempted to frustrate court-ordered sales, the judgment sends a clear warning: the court has the power to act, and it will.
For practitioners, this case reinforces the importance of early intervention. If one party is blocking a sale, don’t wait—seek enforcement, possession orders, or Thwaite adjustments before delays spiral into costly litigation.
