Cobb v Cobb

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date08 Jun 1955
Judgment citation (vLex)[1955] EWCA Civ J0608-2

[1955] EWCA Civ J0608-2

In The Supreme Court of Judicature

Court of Appeal

Before:

Re Married Women's Property Act, 1882 re Cobb's Question

Cobb
and
Cobb

1

the husband's employers on mortgage at 4 per cent interest. The advance was made to the husband and wife jointly and they both made themselves responsible for the mortgage, which was repayable at the rate of £3 a week. The husband made arrangements with his employers for the £3 a week to be deducted each week from his wage. The husband made no housekeeping allowance to his wife but he paid some of his household bills. The wife also paid some of the household expenses and bought furniture, replaced linon, crockery, and so forth.

2

The County Court Judge has found that at the time when the house was bought it was the intention of the parties what they should own the property in equal shares and that the husband should wipe off the mortgage by deduction from his wages.

3

In the middle of 1954 the parties fell out but they have remained living in the same house ever since. On the 22nd June, 1954, the Wife launched a petition for divorce on the ground of her husband's adultery and cruelty. Her petition that been since amended so as to claim only a judicial separation and not a divorce. The husband is defending the case, but he has made no cross charges againsthis wife. The case has not been heard yet but has been certified as fit for a speedy trial.

4

One of the differences between the parties was because the Wife's parents came to the house on the 16th April, 1954, and stayed for some months. The husband was so annoyed about this that he went to solicitors to get them out. Before the application was actually issued, however, the parents left on the 7th September, 1954.

5

On the 9th September, 1954, who husband made an application to the County Court Judge under Section 17 of the Married Women's Property Act, 1882, in which he asked for an Order that the house belonged to him and that the wife should do everything necessary to vest it in his name and that the wife should join in evicting her parents. As the parents had already gone the latter part of the application was not pursued but the husband went on with theclaim that the house was his.

6

The case was heard on the 22nd March, 1955. At that time £651 had been paid off the mortgage; leaving £649 still outstanding. It was agreed that the house was of approximately the same value as when it was bought, namely, £1,700. In the result, the Judge treated the house as belonging to the husband subject to a charge in favour of the wife for the money which she had contributed. He made an Order that the house was to be sold with vacant possession and that the proceeds were to be applied in this way: first, in payment off of the balance due on the mortgage; second, in paying £300 to the Wife, and thirdly that the balance should be paid to the husband. The Wife now appeals to this Court.

7

Under Section 17 of the Act the Court can, on application, decide questions as to the title to or possession of property as between husband and wife. The first question in this case is, who does the house belong to? The law in cases of this kind was considered by this Court quite recently in Rimmer v. Rimmer, 1933, I Queen's Bench, page 63. I would like, if I may, to repeat what I said there: "In cases where it is clear that the beneficial interest in the matrimonial home, or in the furniture, belongs to one or other absolutely, or it is clear that they intended to hold it in definite shares, the Court will give effect to their intention: but when it is not clear to whom the beneficial interest belongs, or in what proportions, then in this matter, as in others, equality is equity". I would only add that in the case of the family assets, if I may so describe them, such as the matrimonial home and the furniture in it, when both husband and Wife contribute to the cost and the property is intended to be a continuing provision for them during their joint lives, the Court leans towards the view that the property belongs to them both jointly in equal shares; and this is so, even though the conveyance is taken in the name of one of them only and their contributions to the cost are unequal. All themore so when the property is taken, as here, in their joint names and it was intended to be owned by them in equal shares. The legal title is in them both jointly, and the beneficial interest is in them both as equitable tenants in common in equal shares. They hold the house as trustees on the statutory trust: for sale. But until the place is sold, each of them is entitled concurretly with the other to the possession of the house and the use and enjoyment of it in a proper manner: and neither of them is entitled to turn out the other. The house cannot be sold with vacant possession unless both consent so it; but if one of them unreasonably reduses his or her consent, the other can go to the Court and ask for an order for sale; and in aid of it, the Court can order vacama possession to be given; but the Court would only make such an order if it was satisfied it was right and proper to do so and on such terms as it thought fit to impose, see the recent case in this Court of 1955, I Queen's Bench, page and compare Smith v. Smith (1945) 61 Crimes Law Reports, page 331.

8

The second question in whether she just was right in orvering as he did in this case, a sale with vacant posession, and in aid of it that the wife should be evicted. I do not think so. Apart altogether from the fact tha she was co-owner of the house with him, she is his wife. It may be that she is an entirely innocent party, and, if so, his duty as a husband is to provide & roof over her head. It would not be right for her to be turned out into the street. But as co-owner she is in an even stronger position. She cannot be turned out unless the Court thinks it right to order a sale, and I do not think that this is the time or the occasion for such an order. The matter can best be considered by the matrimenial Court when it comes to deal with alimony or...

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52 cases
  • Rawlings v Rawlings
    • United Kingdom
    • Court of Appeal
    • 14 May 1964
    ...of either party to allow these rights to be enforced". 13 Some assistance is also to be derived from the case of ( Cobb -v- Cobb 1955 a A. E. R. p. 696) though the facts of that case were rather different from those at present before us. The husband (against whom the wife had presented......
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    ...position that may arise when an application is made under the Married Women's Property Act, 1882, section 17, because we were referred to Cobb v. Cobb, 1955, 2 All England Reports, page 696, a case decided under that Act. It was a case in which a husband and wife owned a house in equal shar......
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