Cuzner (formerly Underdown) v Underdown
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,MR JUSTICE WALTON |
| Judgment Date | 23 May 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0523-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 1973 |
[1973] EWCA Civ J0523-4
In The Supreme Court of Judicature
Court of Appeal
Civil Division
(From: Mr. Justice Dunn - London)
(Revised)
Lord Justice Davies and
Mr Justice Walton
In the Matter of Section 17 of Married Women's Property Act 1882
And In The Matter of Section 4 of the Matrimomial Proceedings and Property Act 1970:
Mr. PAUL FOCKE (instructed by Messrs. Batchelor, Fry, Coulson & Burder, Agents for Messrs. Smith & Harrison, Waltham Cross, Herts. appeared on behalf of the Appellant (Wife, Applicant).
Mr. MATHEW THORPE (instructed by Messrs. H. E. Aston & Co.) appeared on behalf of the Respondent (Husband).
(without calling upon Counsel for the Respondent)
This is an appeal by a wife, who was the respondent in the main suit, from an order made by Mr. Justice Dunn on the 1st March last. It is to be observed that the learned judge gave leave to appeal to the wife, as I shall call her. Her application was with regard to what had been the last matrimonial home -though for only a short time did they live there together, some six weeks - at No. 30 Bellamy Road in Cheshunt. That house was in joint names, in circumstances which I shall explain in a moment. The wife applied, under section 17 of the Carried Women's Property Act, for a declaration that the house was jointly owned and for an order for its sale and for the proceeds to be equally divided. The judge refused to accede to that application and on the contrary made an order against her to transfer to the husband her interest in the property.
The parties were married in August, 1958, and have had three children. They were very young when they were married, 18 and 16. There is a daughter aged 14 who is now living with the husband; and another daughter, aged 9, and a son, aged 8, now living with the wife. Originally (I do not quite know when) they lived in a rented Council house, of which the husband was the tenant. In 1964 he bought the house from the Council. It is to be observed that the wife made no contribution to the purchase of the house, either to the deposit or in the nature of payments of the mortgage interest. In 1965 they were going to move to a bigger and better house, the one that I mentioned just now, 30 Bellamy Road. They sold the ex-Council house, and that sale produced, after the payment of all encumbrances, a total sum of £1,950.
I come now to the purchase of 30 Bellamy Road. The deposit in respect of that house was paid by the husband, and all charges havebeen paid by him. We were told that the monthly mortgage payments amount to some £35. The documents originally were all going to be in the husband's name, but apparently, after some discussion with his solicitor, he was advised that it might be advantageous, from the point of view of estate duty, to have it conveyed into joint names; and on the 8th May, 1970, the house was transferred to these two people in their joint names.
But something else had been happening behind the scenes. Apparently round about Christmas of 1969, when the move to this house was in contemplation, the wife started to have an adulterous affair with the man who subsequently became the co-respondent. Six days before the transfer of the house, namely, on the 2nd May, 1970, the had been celebrating the birthday of the daughter Deborah, and as a result of an incident that took place then the wife admitted to her husband that she had been committing adultery behind his back with the co-respondent for some five months from round about Christians. Six days later, on the 8th May, they moved into the house and lived there only about six weeks when the wife left. The husband at first apparently did not believe the wife when she told him that she had committed adultery and despite her confession did not want her to go; he tried to persuade her to stay, But she went. Now he is living in the house - the matrimonial home as it was for this short period - with the eldest child and a Mrs. Peacock, to whom he wishes to get married, who has a daughter some 14 years old. He earns some £1,800 a year.
The two younger children are with their mother living in a Maisonnette, also at Chesnut, 154 Bury Green Road, which is in the joint names of the co-respondent and his former wife. That apparently is to be sold and the proceeds divided equally between the co-respondent and his former wife, which might fetch him some £3,500. They have only two bedrooms there, and the accommodationis insufficient because, in addition to these two children, the wife has another child by the co-respondent,
The reasons for the proposal of the wife that the house should be sold and that the proceeds should be equally divided between the parties are clearly stated at pages 28 and 29 of the judgment, and I think that, although it is a longish passage, I...
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Tan Bee Giok v Loh Kum Yong
...element of the gross and obvious conduct.The following cases offer a guidance to the application of the rule: (1) In Cuzner v Underdown [1974] 1 WLR 641; [1974] 2 All ER 351 the wife sought a half interest in a house under s 17 of the Married Women`s Property Act 1882. (The Singapore equiva......
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W. v W. (Financial Provision: Lump Sum)
...366; [1973] 1 All E.R. 829, C.A. The following additional cases were cited in argument: Cuzner (formerly Underdown) v. Underdown [1974] 1 W.L.R. 641; [1974] 2 All E.R. 351, C.A. H. v. H. (Family Provision: Remarriage) [1975] Fam. 9; [1975] 2 W.L.R. 124; [1975] 1 All E.R. 367. Jones (M. A.) ......
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Klemens Jarzabkowski v Eileen Mary Jarzabkowska Ellen Jean (Intervener)
...to the wife's conduct. In support of his submission as to the relevance of that he relied upon the case of Cuzner v. Underdown (1974) 1 W.L.R. 641 at page 646 and a passage in the judgment of Mr. Justice Walton. Thirdly, he said that the learned judge had failed to bring into account, when ......