Burns v Burns
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE FOX,LORD JUSTICE MAY |
| Judgment Date | 26 July 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0726-1 |
| Docket Number | 83/0343 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 July 1983 |
[1983] EWCA Civ J0726-1
Lord Justice Waller
Lord Justice Fox
Lord Justice May (was not present)
83/0343
1981 B. No. 255
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE CHANCERY DIVISION
(GROUP B) (MR JUSTICE DILLON)
Royal Courts of Justice,
MR QUINTIN IWI (instructed by Messrs. Boyes, Sutton & Perry) appeared on behalf of the Appellants.
MR P.K. BURNS (the Respondent) appeared on person.
This is an appeal from a decision of Dillon J., given on 1st March, 1982, when he found that the plaintiff, Mrs. Burns, bad no interest in the house in which she and the defendant, Mr. Burns, although not married, had lived together as man and wife for 17 years.
The parties started living together in the Summer of 1961. At that time the plaintiff was aged 20 earning about £12 a week as a tailor. She left the accommodation with her parents and went to live with the defendant in a rented flat where the boy was born on 29th April, 1962. The plaintiff was known as Mrs. Burns. In 1963 when she was again pregnant she and the defendant decided to move to a house and the defendant bought the house in July, 1963. It was in his name and he obtained £4,500 out of the total of £4,900 by mortgage. The second child was born on 9th October, 1963. The plaintiff made a statutory declaration of change of name, her passport was in the name of Burns and their friends and acquaintances believed them to be married. The parties lived together until 1980 when the plaintiff left although relations had deteriorated in the last two years. The facts are more fully set out in the judgment of Dillon J. She could not earn any money when the children were small and it was not until 1975 that she made any appreciable money. When she did earn money she did not keep a separate account, it went in with her housekeeping allowance from the defendant. She did purchase certain fixtures and fittings for the house and material for sheets and bed covers, and so on, and also she did some decorating including wallpapering the house completely in 1977 or 1978. She also bought certain consumer durable goods such as a dishwasher, washing machine, tumble drier, a bed and some other furniture. The appellant submitted that these facts alone produced a resulting trust so that the appellant is entitled to a share in the equity of the house and that the courts should recognise the changes in custom which have taken place over the past 10 or 20 years.
We have had to consider this case in the light of Pettit v. Pettit (1970) A.C 777, a case concerning the interpretation of Section 17 of the Married Women's Property Act, 1882, and Gissing v. Gissing (1971) A.C. 886, a case concerning the application of Section 53, The Law of Property Act, 1925. There have been certain developments since those two cases were decided: (1) The Matrimonial Proceedings and Property Act, 1970, was passed on 29th May, 1970, and came into force on 1st January, 1971, empowering the court to make property adjustment orders. This power was re-enacted in the Matrimonial Causes Act, 1973, Section 24. (2) There has been an increase in the number of decisions involving a man and woman living together without getting married. In Cooke v. Head (1972) 1 WLR 518 the Court of Appeal considered the case of a bungalow built by such a couple and considered what the interests of the woman were as against the man. There was Richards v. Dove (1974) 1 AER 888, a decision of Walton J. against the mistress. Eves v. Eves (1975) 1 WLR 1338 where this court held that there was a constructive trust in favour of the mistress. Brightman J. with whom Browne L.J. agreed, drew the inference that the plaintiff was to have some beneficial interest in return for her labour towards the reparation of a house and she had done considerable physical work when the house was being prepared. See also Tanner v. Tanner (1975) 1 WLR 1346, where this court held that there was a contractual licence to the woman for so long as the children were of school age and reasonably required the accommodation. See also in re Evers Trust (1980) 1 WLR 1327 where dealing with the case of an unmarried couple Ormrod L.J. said: "This is a situation which is occurring much more frequently now than in the past and is a social development of considerable importance with which the courts are now likely to have to deal from time to time". (at 1330A) And there is the case of Hall v. Hall (1982) 3 FLR 379 where Lord Denning M.R. said: "Then the question arose about the house, 6 Hammonds Close, She claimed a share in the equity. She said that they had lived together for 7 years. The Judge found—and the man agreed—that they would not have been able to make the moves and buy the house except for the fact that this couple had been living together and they had both been earning. Her contribution paid for a great amount of the furniture, equipment and fittings. She also bought a car. And she contributed her earnings towards the housekeeping.
So it is said that she is entitled to a share in the equity of the house: not on the matrimonial law which governs husband and wife, but on the principle of a resulting trust. There have been a number of cases recently in the courts where women in the position of this lady have been given protection to this extent: if a man and a woman have been living together as husband and wife, and the woman has been contributing towards the establishment of the joint household, although the house is in the man's name, there is a resulting trust as a matter of ordinary common justice for her. The two cases in which that principle has been settled are Cooke v Head (1972) 1 WLR 518 and Eves v Eves (1975) 1 WLR 1338 to which I would add the case of Tanner v. Tanner (1975) 1 WLR 1346."
Finally there is the case of Bernard v. Josephs (1982) 1 Ch. 391. Although there was a difference of judicial opinion in Pettit v. Pettit that case was mainly concerned with Section 17 of the Married Women's Property Act and in the present case we are concerned with two people living together as man and wife for 17 years as if they were married but not legally married. Lord Hodson and Lord Upjohn disagreed with the approach of Lord Reid and Lord Diplock, but I do not read the speech of Lord Morris as going quite so far. In the circumstances of this case I find the observations of both Lord Reid and Lord Diplock in Pettit v. Pettit as helpful. At page 794 Lord Reid said: "We must first have in mind or decide how far it is proper for the courts to go in adapting or adding to existing law. Whatever views may have prevailed in the last century, I think that it is now widely recognised that it is proper for the courts in appropriate cases to develop or adapt existing rules of the common law to meet new conditions. I say in appropriate cases because I think we ought to recognise a difference between cases where we are dealing with "lawyer's law" and cases where we are dealing with matters which directly affect the lives and interests of large sections of the community and which raise issues which are the subject of public controversy and on which laymen are as well able to decide as are lawyers. On such matters it is not for the courts to proceed on their view of public policy for that would be to encroach on the province of Parliament.
I would therefore refuse to consider whether property belonging to either spouse ought to be regarded as family property for that would be introducing a new conception into English law and not merely developing existing principles. There are systems of law which recognise joint family property or communio bonorum. I am not sure that those principles are very highly regarded in countries where they are in force, but in any case it would be going far beyond the functions of the court to attempt to give effect to them here.
But it is, I think, proper to consider whether, without departing from the principles of the common law, we can give effect to the view that, even where there was in fact no agreement, we can ask the spouses, or reasonable people in their shoes, would have agreed if they had directed their minds to the question of what rights should accrue to the spouse who has contributed to the acquisition or improvement of property owned by the other spouse. There is already a presumption which operates in the absence of evidence as regards money contributed by one spouse towards the acquisition of property by the other spouse. So why should there not be a similar presumption where one spouse has contributed to the improvement of the property of the other? I do not think that it is a very convincing argument to say that, if a stranger makes improvements on the property of another without any agreement or any request by that other that he should do so, he acquires no right. The improvement is made for the common enjoyment of both spouses during the marriage. It would no doubt be different if the one spouse makes the improvement while the other spouse who owns the property is absent and without his or her knowledge or consent. But if the spouse who owns the property acquiesces in the other making the improvement in circumstances where it is reasonable to suppose that they would have agreed to some right being acquired if they had thought about the legal position, I can see nothing contrary to ordinary legal principles in holding that the spouse who makes the improvement has acquired such a right."
And in Gissing v. Gissing, at page 897, Lord Reid summarises the situation in this way: "Returning to the crucial question there is a wide gulf between inferring...
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