Cook v Cook
| Jurisdiction | England & Wales |
| Date | 1962 |
| Year | 1962 |
| Court | Probate, Divorce and Admiralty Division |
Husband and Wife - Settlement - Variation - Meaning of “settlement” - Purchase of house for matrimonial home - Conveyance in name of husband only - Wife contributing towards purchase price - Whether a post-nuptial settlement -
Whilst a husband and wife were living together, a house was purchased for use as the matrimonial home. Both parties contributed towards the purchase price, but the property was conveyed into the name of the husband only. Later, the wife, having been granted a decree nisi of divorce against the husband, applied to the court for an order under section 25 of the Matrimonial Causes Act, 1950, on the basis that the property was the subject of a post-nuptial settlement. The registrar held that there was no post-nuptial settlement and dismissed the application. On appeal by the wife:—
Held, (1) that since both parties had contributed to the purchase price, and the conveyance had been in the name of the husband only, they were equitable tenants in common, the husband holding the property subject to a resulting trust in favour of the wife and subject to a statutory trust for sale.
(2) That the conveyance of the property to the husband, together with the oral arrangement between the parties that the wife should contribute to the purchase price, constituted a settlement; as there was a nuptial element in the whole arrangement, it constituted a post-nuptial settlement within section 25 of the Matrimonial Causes Act, 1950, just as if the transaction had been expressed in a document. Accordingly, the registrar's order would be set aside and the matter remitted to him to determine what variation, if any, should be made in the settlement.
APPEAL from the registrar (Mr. Registrar Kinsley).
The parties were married in June, 1947. There were two children of the marriage. On November 22, 1960, the wife was granted a decree nisi of divorce on the ground of the husband's cruelty. Subsequently, the wife applied by summons under section 25 of the Matrimonial Causes Act, 1950,
R. J. A. Temple Q.C. and Elaine Jones for the wife.
K. Bruce Campbell for the husband.
Dec. 21. PHILLIMORE J. referred to the facts and continued: The registrar found as a fact that the wife “contributed towards the purchase price.” There is some doubt as to how much she contributed, but it was “not less than £145.” Although the husband at one time described the wife's contribution as a loan, in his affidavit in these proceedings he himself describes it as a contribution towards the purchase of the house.
There is no doubt that if the house had been conveyed into the joint names of husband and wife a settlement would have been created: Smith v. SmithF2 and Brown v. Brown.F3 Does it make any difference if it is conveyed solely to the husband? The registrar thought it did and that there was no settlement created.
It is, of course...
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