Des Salles d'Epinoix v Des Salles d'Epinoix
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS |
| Judgment Date | 18 January 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0118-1 |
| Docket Number | No. 18760 of 1966. |
| Court | Court of Appeal (Civil Division) |
| Date | 18 January 1967 |
[1967] EWCA Civ J0118-1
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal from Order of Faulks dated 11th January, 1967
Revised
Lord Justice Willmer
and
Lord Justice Sachs
Mr BASIL OARLAND (instructed by Messrs & ) appeared on behalf of the Appellant(Applicant).
Mr D. S. DAVIES (instructed by Messrs ) appeared on behalf of the Respondent.
relief sought in the action which is before the court, and that any other injunction cannot properly be granted in the action. The defendant's cross-motion in the present case does not in my opinion fulfil that condition: it does not arise out of the relief sought in the only action which is before the court".
It seems to me that when one comes to apply that principle to the facts of the present case, it simply cannot be contended that the husband's to relief by way of injunction arises in any way out of the wife's cause of action, or is in any respect incidental to it.
Furthermore, I do not think that an injunction can properly be granted except where it is shown to be necessary for the purpose of protecting the applicant's person or property. For this purpose I am prepared to accept that the husband has a legal right in respect of his interest in the matrimonial home. But the case of
Lastly, I would make this observation. The whole of this dispute between these two spouses is a dispute about money. The wife wants maintenance. The husband wants to be relieved, so far as is possible, of his financial obligations. He makes no secret of the fact that his desire to get back and reside in the matrimonial home is due to the fact that he does not want to have the expense of maintaining two establishments. He says that he cannot afford to maintain two establishments; but I am bound to say, in view of his income as it has been disclosed, and in the absence of any other responsibilities, I find that statement rather difficult to accept. But in any case his continued exclusion from the matrimonial home cannot, in my judgment, lead to any loss which cannot be adjusted in terms of money when all the financial arrangements between the parties come to be sorted out in the course of the present proceedings.
In those circumstances I have come to the conclusion that the learned judge erred in principle in treating this as a case in which relief by way of injunction can properly be granted. If I am wrong about that, then I would say that I am abundantly satisfied that, even if the learned judge had a discretion to , his exercise of it in the circumstances of the present case was a wholly wrong one which cannot be supported.
I would, therefore, allow the appeal and discharge the order made by the learned judge.
I agree, but as we are differing from the judge of first instance it is appropriate not to confine myself morely to stating my full agreement with what has fallen from my Lord. In the first place I would life to emphasise that what the husband has here been seeking to assert is his proprietary right in No. 39
wisely perhaps he neither did seek (nor apparently was prepared to seek) to submit any claim which might be construed as an attempt to enforce conjugal rights.
Next it seems right to advert to two points in the wife's affidavit which, of course, are not for the decision of this court at this time. The first is her allegation that the husband's purported desire to enforce his proprietary rights was, having regard to his conduct before the section proceedings were started, a malafide exercise, the only true objective of which was to defeat the wife's section 22 claim by putting up a facade of "no desertion".
Secondly, there is in the evidence before this court (as it was before the court below) a cogent medical report as to the potential effect of the husband's return to No. 39, Lansdowne road. In the behalf, too, attention may be drawn to that paragraph in the husband's affidavit of the 10th January of this year in which he refers to the wife as having "always been of a nervous disposition".
The above allegations made by the wife are obviously ones on which I do not wish to express any opinion at al. But this much should be said, that neither the allegation of malafides nor the allegation as to the potential effect on the wife of the return of the husband can be said to lack primafacie evidence. To my mind, when the court cannot, without cross-examination and further inquiry, examine those issues, it would be quits wrong, even if the court had the appropriate powers, to exercise its equitable jurisdiction...
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...Re[1993] 1 FCR 877, [1993] Fam 231, [1993] 2 All ER 693, [1993] 2 WLR 721, CA. Des Salles d’Epinoix v Des Salles d’Epinoix [1967] 2 All ER 539, [1967] 1 WLR 553, Edgar v Edgar [1980] 3 All ER 887, [1980] 1 WLR 1410, CA. F v F (ancillary relief: substantial assets) [1996] 2 FCR 397. Frey v F......
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