Gissing v Gissing
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE PHILLIMORE |
| Judgment Date | 01 April 1969 |
| Neutral Citation | [1969] EWCA Civ J0218-1 |
| Judgment citation (vLex) | [1969] EWCA Civ J0401-6 |
| Date | 01 April 1969 |
| Court | Court of Appeal (Civil Division) |
Appeal by plaintiff against order of Mr. Justice Buckley on 12th June, 1968.
In the Matter of the Law of Property Act 1925
and
In the Matter of a Trust and Questions between Violet Emily Gissing and Raymond Clifford Gissing concerning their respective interests in No, 28 Tubbenden Drive, Orpington in the County of Kent.
[1969] EWCA Civ J0218-1
The Master of the Rolls (Lord Denning)
Lord Justice Edmund Davies and
Lord Justice Phillimore
In The Supreme Court of Judicature
Court of Appeal
Mr. IAN McCULLOCH (instructed by Messrs. Lovell White & King) appeared on behalf of the Appellant Plaintiff.
Mr. JOHN CHERRYMAN (instructed by Messrs. Breeze Benton & Co.) appeared on behalf of the Respondent Defendant.
The parties were married in September 1935, over 33 years ago. He was 22. She was 21. She was working with a firm of printers called H. Clarke & Co. (London) Ltd. She had worked for them ever since she left school. After the marriage, she went on with her work, save for a short time when her son was born. When the war came, the husband went off to the war. She continued with her work at Clarkes. He made her an allowance out of his army pay. She had her own earnings. After he was demobilised, he was out of work for a time, and she kept the family going by her own earnings. Then in May 1946 she managed to get her husband employment in the firm of Clarkes where she worked herself. It was a successful venture. He did well and prospered. They lived in a flat for a year or two. By 1951 he was earning £1,000 a year with Clarkes, and she £500 a year. Then they determined to get a house, I say "they" - and not "he" - because undoubtedly it was a joint enterprise in the sense that it was a combined effort by both of them. It was the wife who actually found the house. It was 28 Tubbendon Drive, Orpington. The price was £2,695. To help them buy it, Clarkes made a loan of £500 - intending, she said, to help her as well as him as she had been with them so long, £2,150 was borrowed on mortgage. The balance of £45 and costs was paid by the husband out of his own monies. The wife paid out of her savings £190 for a cooker, refrigerator, carpet and furniture. She also paid £30 for having a lawn laid. So they both contributed financially to the home - by which I mean both the house and furniture - by putting up as much cash as they could: I suppose some £100 by the husband and £220 by the wife. But the conveyance was taken in the husband's name, the mortgage for £2,150 was in his name, and the loan of £500 by Clarkes was debited to him. They moved into the house. But they still went out to work, both of them, to Clarkes. He got on very well, his salary rising to £2,000 and later £3,000 a year, whilst she stayed at £500. He paid the instalments on the mortgage. He gave her £8 to £10 a week for housekeeping. He paid for holidays. Shepaid for her own clothes, for the clothes of her son, and any extras. Both saved. He saved far more than she, as he earned so much more. He always led her to believe that, if anything happened to him, the house would be hers.
Then in 1961 came the breakdown. On 13th November, 1961, the husband left the house and went to live with another woman. When he was leaving, the wife asked him: "What am I to do? Where am I to live?" He said: "Don't worry about the house, its yours. I will pay the mortgage payments and all the other outgoings." The husband denies that he said this, but the Judge was prepared to assume that he did. At any rate, he went off, but he did go on paying the mortgage instalments and outgoings: and the wife stayed on in the house. The husband has continued to live with the other woman as his wife and has two children by her.
In June 1965 the wife filed a petition for divorce on the grounds of her husband's adultery. On 14th January, 1966, she was granted a decree absolute. She obtained an order for maintenance, but it has been reduced to 1/- a month. I have little doubt that, in making that order, the Court had regard to the fact that the wife was staying on in the house, rent free, with the husband paying the mortgage instalments and the insurance premium.
How the husband claims that the house belongs to him absolutely and that the wife has no interest in it. He desires to turn her out so that he can sell it with vacant possession. It is said to be worth £6,000. He has by now nearly paid off the mortgage. So he wants to sell the house and take the proceeds for himself. Mr. Justice Buckley "not without a little regret" found that the house belonged to the husband and that the wife had no interest in it. He ordered her to give up possession in 28 days.
The wife is thus in a position which all must regret. Her husband has deserted her. He pays her no maintenance. And now he has got an order for her to go out of the house, withoutmaking any provision for her.
If the Judgment below is right, it means that she did the wrong thing in divorcing her husband. She would have been better off if she had not divorced him at all. So long as she was his legal wife, she had a right to stay in the house and she could stop him from selling it over her head. That has been decided these 20 years by decisions of this Court which have been approved by the House of Lords. And, quite recently, this right of a legal wife to stay has been confirmed and strengthened by the Matrimonial Homes Act, 1967. She has now a legal charge which she can register against the title so as to be good against a purchaser. But the right only belongs to a legal wife. Once she divorces her husband and the decree is made absolute, her right is gone altogether. So it is very desirable for her to secure her position before decree absolute. Especially in a case like this, where the husband has set up a new establishment with another woman and has children by her. It is the husband who wants the divorce so that he can marry the other woman. The legal wife is not so keen on a divorce, for she is past the age when she is likely to remarry. So she would be well advised not to seek a divorce, or, at any rate, not to make it absolute, until her position is secure.
Another thing which is unfortunate is the procedure adopted to decide the matter. The wife took out an originating summons in the Chancery Division to determine the ownership of the house. By so doing, she isolated the house from her maintenance: whereas, if she had proceeded in the Divorce Division, house and maintenance could have been decided together at one and the same time. As I said in Button v. Button, 1968, 1 W.L.R., at page 462, maintenance is linked with property. If the wife stays in the house, her maintenance may be reduced on that account. If she goes out, and the husband sells the house and takes the purchase money, she may get more maintenance; and he may be ordered to put part of the money aside so as to be a secured provision for her. She would be well advised, therefore, to take out proceedingsin the Divorce Division so as to determine to whom the house belongs (section 17 of the 1882 Act), before decree absolute, or to inquire whether it was a post-nuptial settlement (section 17 of the 1965 Act), before or after decree absolute, and to ask for maintenance and a secured provision (section 16 of the 1965 Act). All these proceedings can be heard at one and the same time. The Divorce Divisionhas ample power to do what is fair and reasonable, having regard to the conduct of the parties: whereas, the Chancery Division is asked only to answer the cold legal question: what interest has the wife in the house? without regard to the conduct of the parties.
But those remarks are only by the way. We come down to the questions to whom does this house belong? This depends on whether it is a family asset. This principle has been frequently stated. I tried to do it myself in Fribance v. Fribance, 1957, 1 W.L.R. at page 387, but it has been much better done by Lord Justice Diplock (as he then was) in Ulriph v. Ulrich, 3.968, 1 W.L.R. at page 189. It comes to this where a couple, by their joint efforts, get a house and furniture, intending it to be a continuing provision for them for their joint lives, it is the prima facie inference from their conduct that the house and furniture is a "family asset" in which each is entitled to an equal share. It matters not in whose name it stands; or who pays for what: or who goes out to work and who stays at home. If they both contribute to it by their joint efforts, the prima facie inference is that it belongs to them both equally: at any rate, when each makes a financial contribution which is substantial, This inference may be confirmed, or rejected, by looking at their conduct afterwards when the marriage breaks up. Especially by looking at the arrangements they then make about the house and the maintenance of the wife. Thus in Button v. Button, 1968, 1 W.L.R. page 457, the wife left the house with the husband in it. She got maintenance for herself of £7. 10s.0d. a week and £2. 10s.0d. for each child. It was assessed on the footing that the house belonged to her husband and that she had no benefit from it. It was held that she had no interest in the house. Tulley v. Tulley was somewhat similar, for there, too, the wife left the house. But in the present case it was the husband who left. He said to his wife: "Don't worry about the house. Its yours. I'll pay the mortgage instalments and other outgoings." By which I take it that he recognised that she had an interest in the house which entitled her to stay in it. He recognised that she had done her part - by the loan made by their employers - by the money she paid for the furniture and the lawn - by the money she had contributed to the family expenses, and all the other things which...
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