Fribance v Fribance (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE HODSON,LORD JUSTICE MORRIS |
| Judgment Date | 29 November 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J1129-2 |
| Court | Court of Appeal |
| Date | 29 November 1956 |
[1956] EWCA Civ J1129-2
Lord Justice Denning
Lord Justice Hodson and
Lord Justice Morris
In The Supreme Court of Judicature
Court of Appeal
Mr. D. TOLSTOY (instructed by Messrs. Hillearys) appeared on behalf of the Appellant (Husband, Respondent).
Mr. H. S. RUTTLE (instructed by Messrs. Edwin Coe & Calder Woods) appeared on behalf of the Respondent (Wife, Petitioner).
This is an application under section 17 of the Married Women's Property Act, 1882, to determine the title to the matrimonial home. The parties married in 1933 and were divorced in 1955. The summons was issued before decree absolute, so the Court has jurisdiction to deal with the case. They have two children, one born in 1934 and the other in 1937.
The matrimonial home is at No. 27 Gondar Gardens, London. The couple, with their two children, went there in 1940 astenants of rooms on the ground floor. The husband went into the Air Force and made the ordinary compulsory allotment to his wife. In 1941 a question arose as to a further allotment. The husband wrote to his wife about it, and it was arranged between them by their letters that the wife should go out to work to help keep the household going, whereas the husband could save the extra money which he got by the further allotment. He said that he would save it for their future so that it could be used for the welfare of the family thereafter. In 1942 the wife went out to work and she has been out to work ever since. She used all her earnings for family purposes, dressing the children and so on, whilst the husband saved what he could. In 1946 the husband was demobilised and at that time his savings, with his gratuity, came to £260. (He says that only £12 of that sum came from the allotment which he saved in pursuance of the letters). Out of the savings they went for a holiday. Afterwards he got work as a car driver and earned £7 or £8 a week and gave his wife about £6 a week out of it She continued to go out to work and used her earnings for the benefit of the household. Together they bought furniture for the home. By the year 1950 the husband's savings were reduced to £130, but the wife had some savings in the shape of insurance policies.
In 1950 an opportunity arose to buy the leasehold of the house in which they were living. The lease had 40 years to run. They bought it for £950, of which £150 was paid in cash and £800 was left on mortgage. A policy of insurance was taken out to cover the mortgage repayments. It was a good business arrangement for this couple. They were living on the ground floor themselves. The top two floors were let to other tenants. The rents from those tenants would cover most of the outgoings. The rest of the outgoings came out of the husband's earnings but it was no more than the old rent they had had to pay for their rooms. They were therefore in a position to acquire the leasehold at no extra cost to themselves, except for the first £150 which they had to find.
In order to get the £150, the husband contributed the £130 which he had left of his savings and the wife realised £20 on one of the insurance policies. The leasehold was acquired in the husband's name, and all went smoothly until the year 1952, when the couple fell out. The solicitors for the wife wrote to the husband about the financial position between them, and at that time they claimed on her behalf no share in the house but only the £20. They said "We are also instructed to claim from you the sum of £20 being the amount which our client provided towards the purchase of the house". No solution was reached. Eventually in 1955 the wife filed a petition for divorce on the ground of the husband's cruelty, and on 10th May, 1955, she obtained a decree nisi. Before it was made absolute, she took out a summons to determine the title to the house and furniture. They are both living there still, but occupy separate rooms. In the course of the proceedings it was agreed that the furniture belongs to them both jointly in equal shares, but the question is, to whom does the house belong? The Registrar held that it belonged to the husband and that the wife was only entitled to the £20 which she paid towards it. The wife appealed to Mr. Justice Karminski, and he held that the house be-longed to them both jointly in equal shares. He thought that the case came within the decision of this Court in Rimmer v. Rimmer (1953 1 Queen's Bench, page 63). The husband appeals to this Court and asks us to restore the Order of the Registrar.
Mr. Tolstoy has argued forcibly that the house belonged to the husband. The husband, he said, bought the lease and took it in his own name, the leasehold interest was vested in him, he paid for it out of his own savings and earnings, save only for the £20 contributed by the wife. Mr. Tolstoy said that the wife had no right to the house or any share in it unless she could show a contract by the husband with her or a gift by him to her or a trust by him for her in regard to it. In support of this proposition he relied on the well-known case of "savings from housekeeping", Blackwell v. Blackwell (1943, 2 All England Reports, page 579), re Sims' Question (1946. 2 All England Reports, page 138)and Hoddinott v. Hoddinott (1949, 2 King's Bench, page 406). Then, in older to refute any suggestion of a contract, gift or trust enforceable at law, he relied on Balfour v. Balfour (1919, 2 King's Bench, page 571).
I do not think that line of argument is valid to-day. A wife is not to be put to proof of a contract or gift as if she were a stranger. Lord Justice Homer made that clear in Rimmer v. Rimmer (1953, I Queen's Bench, at page 76) when he said that "cases between husband and wife ought not to be governed by the same strict considerations, both at law and in equity, as are commonly applied to the respective rights of strangers". I fully agree with that observation and I think it is the correct way of approaching these cases at the present day.
I put, therefore, the question of contract, gift, or trust on one side, and apply the law as laid down in Rimmer v. Rimmer and Cobb v. Cobb (1955, 1 Weekly Law Reports, page 731), which I take to be this: if it is clear that the property, when it was acquired, was intended to belong to one or other absolutely, as in the case of investments, or that they intended to hold it in definite shares, as sometimes happens when they run a business, then effect must be given to their intention; and in that case the title so ascertained is not to be altered by subsequent events unless there has been an agreement to vary it. In many cases, however, the intention of the parties is not...
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