Cook v Cook
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER |
| Judgment Date | 21 May 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0521-4 |
| Court | Court of Appeal |
| Date | 21 May 1962 |
[1962] EWCA Civ J0521-4
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Probate, Divorce & Admiralty Division (Divorce)
Lord Justice Willmer
Lord Justice Donovan
Lord Justice Davies
Mr J. ARNOLD. Q. C., and Mr K. BRUCE CAMPBELL - instructed by Mr Denis Hayes, Agent for Messrs Hewitt & Co., Dartford, - appeared on behalf of the Appellant.
Mr R. J. A. TEMPLE. Q. C., and Miss E. JONES - instructed by Mr Frederick Weil - appeared on behalf of the Respondent.
This appeal raises a short hut interesting point. I confess it is not a point which I have found at all easy; but, having made up my mind; I do not see that any advantage is to he gained by reserving the matter for further consideration.
The appeal arises out of an application made by a wife petitioner under Section 25 of the Matrimonial Causes Act, 1950, for an Order in these terms - which I read from the Notice of Application - "that all the rights, powers and interests of the Respondent in a post-nuptial settlement comprised in a Conveyance dated on or about the 21st day of January 1957, of a dwelling house" - at a certain address - "to the Respondent in fee simple, the said Conveyance being on an implied trust for the Petitioner and the Respondent, he extinguished as from the date of the decree absolute herein". It remains to add that the house referred to was in fact the matrimonial home of the parties.
The matter came, in the first instance, before Mr Registrar Kinsley, who held that there was no settlement, and, in those circumstances, he dismissed the application.
On appeal, Mr Justice Phillimore held that the transaction did amount to a post-nuptial settlement, and he therefore remitted the matter to the learned Registrar to consider and report what, if any, variation ought to be ordered.
The husband now appeals to this Court, contending that the learned Registrar was right and that the learned Judge was wrong in finding that there was a settlement.
The essential facts of the case lie within a small compass and can be briefly stated. The parties were married on the 14th June, 1947. There are two children of the marriage, their present ages being approximately twelve and six. The wife brought a Petition for divorce on the ground of cruelty on the part of the husband. That Petition was in due course tried and, on the 22nd November, 1960, she obtained a decree nisi. As I understand the position, that decree has not yet been madeabsolute.
The Conveyance relied on, under which the matrimonial home was purchased, was dated the 29th January, 1957. She effect of the Conveyance was to convey the house into the husband's name. The purchase price was £2,350. £2,000 was borrowed from an Insurance Company on mortgage, secured by two policies of £1,000 each, taken out by the husband on his own life, and the remaining £350 was found in cash.
It is common ground that both husband and wife contributed to the provision of that cash SUM. There is some issue as to the exact amounts contributed by each, but I do not think that the divergence between the parties on that point is material. In the circumstances, there is no dispute but that the husband is the sole legal owner of the house; but it has been conceded on his behalf that, by reason of the wife's contribution to the purchase price, the husband holds the property on a resulting trust in her favour. It has been conceded that that involves that the property is held on trust for sale, and that pending such sale the husband and wife ere equitable tenants in common, each being entitled to an undivided share in the house.
The wife's case is that the Conveyance thus resulted by operation of law in a settlement, such as would come within the Court's jurisdiction to make a variation order under Section 25 of the Act. In the course of his argument on her behalf, Mr Temple made it clear to us that what the wife really wants to do is to obtain an Order varying the present arrangement, so as to preserve to her dun sola the use of the house, to the exclusion of the husband, until such time as the younger child of the marriage attains the age of 21.
The husband's case is that there was, in a 11 the circumstances, no settlement such as could call for an Order of the Court, because the transaction lacked the essentialelement of provision being made for the wife in her character as wife. On the contrary, it is said, the wife obtained such beneficial interest as she has in the house solely by reason of her own efforts. Her interest resulted by operation of law from the fact of her contributing to the purchase of the house; her interest was, therefore, limited in extent to the proportior in which she contributed. Consequently, it is said, the purchase of the house was in no sense a provision made for her by the husband in her character as wife.
There is, of course, a good deal of authority to be found in the books with regard to the Court's jurisdiction to vary settlements. A great many of those authorities were recently reviewed by this Court in the case of ( Prescott v. Fellowes 1958 Probate, p. 260). I do not think, for the purposes of this case, that it is necessary to go again through the labour of reviewing the many authorities in the past. It is, however, well to remember that it is now firmly established that the Section of the Act is to be liberally interpreted, and its application is not confined to what may be described as settlements in the strict sense. No actual case has been brought to our attention in which the circumstances were the same as those we have here. We were referred, however, to ( Smith v. Smith 1961 Times Law Reports, p. 331) and ( Brown v. Brown 1959 Probate, p. 86), where a somewhat similar question arose. In both those cases the question arose in relation to the purchase of the matrimonial home. But in both those cases the matrimonial home had been purchased in joint names: the Conveyance was to husband and wife jointly in fee simple upon trust to sell, with power to postpone, and expressly provided that they were to stand possessed of the net proceeds of sale and of the net rents and profits until sale in -trust for the husband and wife as joint tenants beneficially. The effect of that was stated in Smith V. Smith by Mr Justice Denning, as follows.
"The result was that the husband and wife hold a joint tenancy of the legal estate in the land (which could not be severed) and an equitable joint tenancy in the income of the land pending sale and of the proceeds eventually arising from the sale (which could be severed by taking the appropriate steps) ……So long as the husband and wife were living in the house, they, of course, shared the occupation and acquiesced in a postponement of sale, and if they had continued in that way until one died the survivor would take the whole legal and beneficial interest in it. If...
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