Button v Button
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DANCKWERTS,LORD JUSTICE WIDGERY |
| Judgment Date | 30 January 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0130-3 |
| Date | 30 January 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J0130-3
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From Mr District Registrar Beamish Green, Hastings
The Master of the Rolls (Lord Denning)
Lord Justice Danckwerts and
Lord Justice Widgery
Mr W.E. BARNETT (instructed by Messrs Simonds Church Rackham) appeared as Counsel for the Appellant Husband.
Mr MICHAEL LEWIS (instructed by Messrs John Lester & C o., Hastings) appeared as Counsel for the Respondent Wife.
This is another case between husband and wife as to the ownership of the Matrimonial hone. The parties were married on the 26th March, 1955. The husband was a sales representative and the wife was an air hostess. They have two children, a girl born on the 6th January, 1957, so she is now 11, and a boy born on the 24th September, 1959, so he is now 9.
After the marriage the wife was employed for five or six months and brought her earnings into the family pool. But they did not have a house of their own then. They did not get their own house until April 1956. They were out looking for one when the wife spotted a cottage called Sendhurst Farm Cottage at Send, near Working, which was empty and cut of repair. It needed a lot of money spent on it. The Building Society stipulated that 300 should be spent on improving it. The cost of it was 2,180. It was conveyed into the husband's name alone, He paid the deposit of 380. His employers lent him that money at 2 per cent, interest; but he had to provide his life assurance as collateral security. He borrowed 1,800 on mortgage from a Building Society. He paid the instalments on the mortgage.
After getting the house, they both set to work improving it. The wife had good ideas and they both did a lot of work in carrying them out. He employed bricklayers and carpenters for some of it. Their friends helped too. The wife herself helped with the painting and decorating and with the garden. The husband worked hard too. They made it very habitable and went into occupation in the autumn of 1956.
It was submitted to us that the cottage was bought as a joint venture. But the Registrar did not so find. And, in the absence of any such finding, I think we must take it to have been intended to belong to the husband. After all, he provided all the finance and that is the test which folk usually apply. No point was taken that it was a post-nuptial settlement such as was discussed in Ulrich v. Ulrich, 1968, 1 A.E.R. p. 67.
After being there two years, they decided to sell the cottage. In August 1958 it was sold for 3,050. So there was a profit of 1,000. That money was put into shares in the husband's name. They went into a flat for a few months. Then in March 1959 they found a plot of land, 37 Sandalwood Avenue. Chertsey, on which a house was being built. It was bought for 3,485. It was conveyed into the husband's name. 3,000 was left on mortgage. He paid the deposit and other moneys, in all 700 or 750. He paid them out of the shares. He paid the instalment to the Building Society of 19. 19s.7d. a month. It was a new house and little work had to be done on it, but they both worked in the garden, and sc forth.
They lived at 37 Sandalwood Avenue, Chertsey for four or five years. But in the autumn of 1964 "the wife left the house, taking the two children with her. In November 1964 she filed a petition for divorce. She charged her husband with adultery with other women but she said she had condoned his adultery by having intercourse with him afterwards up to April 1964. In addition, she charged him with cruelty. On the 4th May, 1965, she was granted a decree nisi on the ground of her husband's cruelty. It has since been made absolute.
After leaving her husband, the wife went to live at Hastings. She took a flat there where she lives with her two children. She applied for maintenance. His earnings were 1,400 or 1,500 a year gross. An order was made on him to pay 7. 10s.0d. a week for the wife and 2. 10s.0d. a week for each child, making 12. 10s.0d. a week altogether. That maintenance must, I think, have been assessed on the basis that the wife was in the flat at Hastings and had net got any benefit from the matrimonial home. The husband has continued to live at the house, 37 Sandalwood Avenue, Chertsey paying the instalments to the Building Society and all outgoings.
The wife took cut an application before the DistrictRegistrar claiming a good deal of the furniture and also a half share in the house itself. No question arises now as to the furniture. But the question is as to the house. The Registrar found that the wife was entitled to a half share. He enquired into the case most carefully and set it out clearly. His crucial finding was contained in one sentence: "I accept the wife's claim that she was economical in her spending and that she spent many hours improving and decorating the house which otherwise would have been costly. It was in part at least due to her efforts that the cottage purchased for 2,000 in 1956 realised 3,050 when it was sold in 1958".
The question is whether in point of law and in fact the Registrar's finding is justified. we have been through all the cases once more. In Appleton v. Appleton, 1965, 1 W.L.R. p. 25, the husband did work on his wife's house. He was a skilled craftsman who did work of an exceptional nature altogether. In Jansen v. Jansen 1965 P., p. 478, the husband converted his wife's house into flats. In both these cases the work done by the husband was of a type which a contractor is normally employed to do, not the odd jobs about the house and net even the painting and decorating which husbands often do. Only yesterday in Pettitt v. Pettitt another division of this Court commented on those cases. In the light of their observations, the position seems to be this. When the matrimonial home belongs to the wife (such as when it is left to her by a legacy or paid for by her own money), the husband does not get a share in the house simply because he puts up a shelf or touches up a window sill or even paints and decorates a room. He has the benefit of living in the house rent free. He does not have to provide a roof over her head. He should not be entitled to...
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Lineth Webster v Carolyn Gumbs (as Lawful Attorney for Bernice Stapleton, Executrix of the Estate of Percy Sylvester, deceased)
...that at least on one occasion she left the home taking her children with her. 67 The court finds the decision ofButton v Button [1968] 1 All ER 1060 very instructive. Lord Denning stated "that a wife does not get a share in the house simply because she cleans the walls or works in the garde......
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McKenzie (Marguerite) and Anthony McKenzie
...the work done was of the type done by husband and wife upon the matrimonial home without giving the worker a legal interest in it. See Button v. Button [1968]1 W.L.R. 457. But I prefer to decide this appeal upon the wider ground that in the absence of agreement, and there being no question......
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Burns v Burns
...Lord Hodson in Pettit v. Pettit at page 811 and of Lord Reid at page 796. The undertaking of such work is, I think, what Lord Denning in Button v. Button (1968) 1 W.L.R. 457 called the sort of things which are done for the benefit of the family without altering the title property. The asse......