Burke v Burke
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davies,LORD JUSTICE BUCKLEY,LORD JUSTICE LAWTON |
| Judgment Date | 09 November 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1109-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 1973 |
[1973] EWCA Civ J1109-6
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Registrar Stranger-Jones-London)
(Revised)
Lord Justice Davies
Lord Justice Buckley and
Lord Justice Lawton
In the Matter of the Married Women's Property Act 1882:
Mr. PAUL HAMPTON (instructed by Messrs. S. S. Bookatz & Co.) appeared on behalf of the Appellant (Wife, Respondent).
Mr. DUNCAN MATRESON (instructed by Messrs. Duthie, Hart ft Duthie) appeared on behalf of the Respondent (Husband. Applicant).
Lord Justice Buckley will give the first Judgment.
This is an appeal from a decision of Mr. Registrar Stranger-Jones on the 17th May, 1973 when he refused further to postpone the sale of the former matrimonial hose of the parties (who were previously husband and wife but as between whoa a decree nisi has now been granted), that matrimonial home being owned by them in equal shares. The history of the matter is this. The parties were married in 1962. They had two children, born in 1964 and 1966 respectively. At some date in 1966 they bought the house which is in dispute in the present proceedings, 22 Roohford Avenue, Chadwell Heath, in Essex. A separation took place in November, 1967, when the husband left the matrimonial home, leaving the children of the marriage with their mother. In October, 1971, Mrs. Justice Lane granted a decree nisi on the husband's prayer on the ground of two years, separation, with the wife's consent. There had previously been cross-allegations of cruelty, but those were not proceeded with and the decree was made on the ground I have stated. Custody of the children was granted to the wife, and by consent no maintenance was ordered for the wife but the husband was ordered to pay £3 a week in respect of each of the two children. We have been told that that order was made as the result of negotiations between the parties which contemplated (and we were informed that the learned judge was told this) that the wife would pay the husband £2,250 for his share in the equity of redemption in the house, the house being subject to a mortgage which has not yet been fully discharged. But it seems that she was not able to find that money, or at any rate did not find the money, and in consequence, in April, 1972, proceedings which the husband had commenced earlier by originating summons under section 17 of the Married Women's Property Act, 1882,were brought on before the learned registrar, who on the 13th April, 1972, made an order declaring that the husband (into whose sole name, I should have said, the property had been conveyed) held the property in trust for himself and the respondent in equal shares. The husband had, I think, at an earlier stage been asserting that he had the sole beneficial interest, but he did not prose that claim and the matter stands that those are the equitable interests in the property. Consequently the property is, under the Law of Property Act, 1925, held on the statutory trust for sale, with the ordinary statutory power to postpone sale; and the beneficiaries under the trust are the husband and the wife.
The question of an immediate sale was not considered at the time of that order; but the matter was brought back before the learned registrar in July, 1972, on an application by the husband (as I will continue to call him) for an order that the trust for sale should be carried out. On that application the registrar made no order on the question of the sale of the property save that both parties should have leave to file affidavits on the question of whether there should be a sale or not. The husband filed an affidavit the wife filed an affidavit. On the 30th October, 1972, the application was restored, but it was adjourned not to come on again until the end of February, 1973. On the 2nd March, 1973, the matter cams again before the registrar, at which time he had the two affidavits before him. He ordered that the house be put up for sale with vacant possession on or before the 1st May, 1973, but he gave liberty to the wife to apply for further postponement of the sale upon filing an affidavit at least ten days before the hearing of the further application, if any, setting out what further attempts she had made to try to find alternative accommodation or to raise money to buy out the applicant, and to find work for herself and, if unable to work due to Illness, to exhibit a full medical reportcontaining a prognosis and in the event of a further application the registrar ordered that the wife should attend to give oral evidence. The husband was given leave to file a farther affidavit if he wished to do so. The wife did file an affidavit, in which she wade certain allegations against her husband to the effect that he was an improvident man and that he had not bothered about the children and she explained why, as she said, she had difficulty in raising money with which to buy out her husband's interest, and also gave reasons why she found it difficult to find part-time employment suitable for her to engage in while she was also caring for the children. But I must say that I myself find it a little odd that the only kind of part-time employment that she seems to have investigated at all was...
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Williams (J. W.) v Williams (M. A.)
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Re Bailey (A Bankrupt) (No. 25 of 1975)
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Re Evers' Trust
...true question is whether it is inequitable for the wife once the matrimonial home has gone, to want to realise her investment". 10 In Burke-v-Burke (1974) 1 Weekly Law Reports, 1063, however, children were involved. On the husband's application under Section 17 the Registrar ordered a sale,......