Bothe v Amos
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROWNE |
| Judgment Date | 22 January 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0122-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 1975 |
[1975] EWCA Civ J0122-3
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Registrar Holloway - London)
Lord Justice Megaw
Lord Justice Browne and
Mr. Justice Rees
In the Matter of an Application under section 17 of the Married Women's Property Act 1882:
Mr. ROBERT KIRK (instructed by Messrs. Wedlake Bell) appeared on behalf of the Appellant (Applicant).
Mr. NICHOLAS MEDAWAR (instructed by Messrs. Eric Cheek & Co., South Harrow) appeared on behalf of the Respondent (Respondent).
LORD JDSTICE MEGAW: This is an appeal from the judgment and order of Mr., Registrar Holloway on the 9th April, 1974, made on an application by Mrs. Patricia Elsie Nellie Bothe under section 17 of the Married Women's Property Act, 1882. The respondent to the application was Mrs. Bothe's former husband, Mr. Brian Robert Amos.
The parties were married on 28th January, 1961. In June, 1971, Mrs. Amos, as she then was, committed adultery with Mr. Peter Bothe. In August, 1971, she left Mr. Amos, She left the matrimonial home, 71 Halbutt Street, Dagenham, and she abandoned the business which she had previously helped to carry on there. On 21st October, 1971, Mr. Amos petitioned for divorce. He obtained a decree nisi on 24th February, 1972, and a decree absolute on 31st May, 1972, On 3rd June, 1972, Mrs. Amos married Mr. Bothe. On 24th August, 1972, Mr. Amos remarried. He has continued to live in the former matrimonial home and also to carry on a business from there.
On 20th September, 1972, these proceedings were started by Mrs. Bothe, The applicant was contending that she was entitled to a share in property which the registrar was invited to consider under three heads: the leasehold property, 71 Halbutt Street, which had been the last matrimonial home; the goodwill and assets of a business which had been carried on at 71 Halbutt Street; and the assets of another business, said to have been carried on jointly by the husband and wife (as they then were), which business was referred to at the hearing by the name " Anderson's".
It is clear from decisions of the House of Lords, in particular ( Pettitt v. Pettitt 1970 Appeal Cases 777: see particularly Lord Morris of Borth-y-Gest at page 798) that the scope of an application under section 17 of the 1882 Act is limited. It is a procedural section concerning "any question between husband and wife as to the title to or possession of property". In this case we are concerned,at least primarily, with title: and that involves the question what the title is: not what the title ought to he. The judge has to decide the question of title to - the beneficial ownership of - property in respect of which husband or wife (or, as here, former husband and wife) both assert a claim. He has to decide as respects such property whether the one or the other is the beneficial owner, or, if the ownership is shared between them, what are the respective shares. The judge is not concerned with any question whether it is fair that the property should be wholly owned by the one or the other or what the fair shares would be. As a result of legislation since Pettitt v. Pettitt was decided, the importance of section 17 decisions has greatly decreased. For, in most cases where there are property disputes as a result of the breakdown of a marriage, section 24 of the Matrimonial Causes Act, 1973, now enables the court, by proceedings under that section, it may be coupled with proceedings under section 17 of the 1882 Act, to do the very thing which the House of Lords in Pettitt v. Pettitt decided could not be done under section 17 by itself: that is, to make an adjustment of the property rights which exist in law, so as to produce a fair result in relation to the situation resulting from the breakdown of the marriage. But in the present case section 24 of the Matrimonial Causes Act, 1973, cannot be invoked. Both parties have remarried. Hence this application under section 17 of the 1882 Act stands by itself.
The registrar, having read affidavits and heard oral evidence of the parties and witnesses called by them, held that the applicant, Mrs. Bothe, had a one-third share in the beneficial interest in respect of the leasehold property at 71 Halbutt Street, and that she owned one-third of the goodwill and assets of the business there carried on. He made no order as to the business " Anderson's". In his order he set out his computation of the value of the beneficial interest in the leasehold property by reference to the current valueof the property and certain other factors (outstanding mortgage loan, repairs since August, 1971, and mortgage repayments since that date). He also assessed the value of the assets and goodwill of the business as at August, 1971. The order concluded: "And it is Adjudged and Declared that the total value of the Applicant's share in the premises and business is £2,500 And it is Ordered that the sum of £2,500 be paid to the Applicant by the Respondent within two months from today, with liberty to either party to apply in this respect".
Mrs. Bothe appeals. She contends that her share should be one-half, not one-third; that the registrar erred in taking the value of the business as at August, 1971, instead of at the date of the hearing; and that the registrar erred in not assessing the applicant's share in the " Anderson" assets. I propose to deal with the last point at once. The registrar, I think, came to the right conclusion. Amongst other reasons, there is no trace of any evidence that there were, or ever had been, any " Anderson" assets other than payments into the bank account of Mrs. Bothe (Mrs. Amos as she then was), to which I shall refer hereafter in another context. Through her counsel (not counsel who represented her in the court below) she also applies for leave to amend her previously stated grounds so as to take a point not taken below, attacking the validity of the order. I shall return to that issue when I have dealt with the other matters.
We were not provided with a note of the oral evidence heard by the registrar in any form which counsel for Mrs. Bothe considered that he could properly put before the Court. There was no request for an adjournment and counsel told us that he did not in the circumstances propose to challenge any finding of fact in the registrar's judgment: though he submitted that the registrar had drawn wrong inferences from the facts which he found.
The relevant facts are set out clearly, carefully and in detailin the judgment of the learned registrar. No useful purpose would be served if I were to reiterate them in detail.
The parties had occupied two earlier matrimonial homes before they came to live in 71 Halbutt Street. The learned registrar was invited by the parties to investigate the history of the purchase and financing and sale of those two properties, as being relevant to the question of the shares of ownership ultimately in 71 Halbutt Street.
The first property was 29 Thorn Lane, Rainham. It was bought in the husband's name before the carriage. It will be convenient in dealing with the facts to refer to Mr. Amos as "the husband" and to the then Mrs. Amos, now Mrs. Bothe, as "the wife"). 29 Thorn Lane became the first matrimonial home. The registrar has held that the husband contributed £450 towards the initial purchase. The mortgage of £1,800 was paid off in course of time out of the earnings of the husband and wife. The husband's earnings were twice those of the wife. On that basis the registrar did a sum. He said that the husband's contribution was £450 + £1,800 × ?and the wife's contribution was £1,800 × ?. The resulting contributions are respectively £1,650 and £600, and this represents the proportionate shares of ownership of the property. So when 29 Thorn Lane was sold in 1967 for £4,750, the registrar says that the husband's share was £3,484 and the wife's was £1,266.
As I understand it, no one challenges the registrar's approach in making a calculation of this nature; nor is his arithmetic criticised. But counsel for the wife says that the registrar should not have applied the ?: ? proportion. It should have been ½: ½. The ground of complaint on this part of the judgment, as I understand it, was that the registrar expressly found that the wife, after paying her expenses, "gave the husband any spare money"; that is, she is found to have put into the common house-buying fund all her earnings, save only for her expenses; but the registrar did not, at leastexpressly, make any corresponding finding as regards the husband's dealings with his earnings. I am afraid I do not regard that as arguable criticism of the registrar's finding. It is, to put it bluntly, a hopeless point.
The next stage in the history is the purchase of the second matrimonial house, 47 Windsor Avenue. It was bought for £7,250. No doubt the proceeds of the sale of 29 Thorn Lane were used. There was a question, involving acute controversy of oral and documentary evidence – evidence which, it should be noted, we have not been privileged to see, though we were asked to hold that the registrar was wrong – as to a deposit, at first said to have been £725, though the figure was later amended to a smaller one when various facts emerged. This amount came from the wife's bank account. She said it was a personal contribution from her. The registrar held that it should have been treated as emanating equally from the husband and wife, because the wife's bank account was being fed from the shadowy business which was referred to at the hearing as " Anderson's". It is clear that both husband and wife participated in that business. It is clear also that proceeds of that business were put into the wife's account deliberately, with the knowledge of both, in order to facilitate the concealment from the...
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