Gissing v Gissing

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Lord Morris,Viscount Dilhorne,Lord Pearson,Lord Diplock
Judgment Date07 Jul 1970
Judgment citation (vLex)[1970] UKHL J0707-1

[1970] UKHL J0707-1

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Viscount Dilhorne

Lord Pearson

Lord Diplock

Gissing (A.P.)
and
Gissing

Upon Report from the Appellate Committee, to whom was referred the Cause Gissing (A.P.) against Gissing, that the Committee had heard Counsel, as well on Monday the 16th, as on Tuesday the 17th, Wednesday the 18th and Thursday the 19th, days of March last, upon the Petition and Appeal of Raymond Clifford Gissing (Assisted Person), of 36 Hill Road, Mitcham, Surrey, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 1st of April 1969 (as corrected by an Order of the Court of Appeal of the 23d of June 1969), might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Official Solicitor to the Supreme Court, lodged in the said Appeal (which said appeal was heard ex parte as to the Respondent Violet Emily Gissing, she not having lodged a Case in answer to the said Appeal though ordered so to do); and due consideration had this day of what was offered in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 1st day of April 1969 (as corrected by an Order of the said Court of Appeal of the 23d day of June 1969), complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Buckley, of the 12th day of June 1968, thereby in part Discharged, be, and the same is hereby, Restored: And it is further Ordered, That the Appellant be not at liberty to sell the property known as 28 Tubbenden Drive, Orpington in the County of Kent for a period of three months from this day: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal: And it is further Ordered, That there be no Order as to Costs in this House save that the Costs incurred by the said Appellant in respect of the said Appeal to this House, and also the Costs incurred by him in the Court of Appeal be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Reid

My Lords,

1

I agree with your Lordships that this appeal must be allowed. But, as in Pettitt's case [1969] 2 W.L.R. 966, much wider questions have been raised than are necessary for the decision of the case. I adhere to the views which I expressed in Pettitt's case and I do not think that I am precluded from maintaining them by the decision in that case. But if I am then in my view the law is left in a very unsatisfactory position.

2

I take a common case where husband and wife agreed when acquiring the family home that the wife should make a financial contribution and the title to the house was taken in the husband's name. That contribution could take one or other of two forms: the wife might pay part of the deposit and instalments or she might relieve the husband of some of his obligations, e.g. by paying household bills, so as to enable him to pay for the house. The latter is often the more convenient way.

3

It must often happen that in coming to and carrying out such an agreement or understanding neither spouse gives a thought to the legal position or the legal consequences. The law is terra incognita and rather frightening to many people. Spouses generally expect that, on the decease of one of them, his property will go to the other, and I strongly suspect that in a great many cases they do not think about what the position of the wife would be if there were a divorce or the husband became bankrupt, or at least they do not discuss those possibilities. So they do not discuss the question whether carrying out such an understanding will give the wife a share or beneficial interest in the house. If either of them gives a thought to the matter he or she may well think that the law will produce a just result without their assistance. Of course many people are more business like but many are not.

4

If there has been no discussion and no agreement or understanding as to sharing in the ownership of the house and the husband has never evinced an intention that his wife should have a share, then the crucial question is whether the law will give a share to the wife who has made those contributions without which the house would not have been bought.

5

I agree that this depends on the law of trust rather than on the law of contract, so the question is under what circumstances does the husband become a trustee for his wife in the absence of any declaration of trust or agreement on his part. It is not disputed that a man can become a trustee without making a declaration of trust or evincing any intention to become a trustee. The facts may impose on him an implied, constructive or resulting trust. Why does the fact that he has agreed to accept these contributions from his wife not impose such a trust on him?

6

As I understand it, the competing view is that, when the wife makes direct contributions to the purchase by paying something either to the vendor or to the building society which is financing the purchase, she gets a beneficial interest in the house although nothing was ever said or agreed about this at the time: but that, when her contributions are only indirect by way of paying sums which the husband would otherwise have had to pay, she gets nothing unless at the time of the acquisition there was some agreement that she should get a share. I can see no good reason for this distinction and I think that in many cases it would be unworkable. Suppose the spouses have a joint bank account. In accordance with their arrangement she pays in enough money to meet the household bills and so there is enough to pay the purchase price instalments and their bills as well as their personal expenses. They never discuss whose money is to go to pay for the house and whose is to go to pay for other things. How can anyone tell whether she has made a direct or only an indirect contribution to paying for the house? It cannot surely depened on who signs which cheques. Is she to be deprived of a share if she says "I can pay in enough to pay for the household bills", but given a share if she says "I can pay in £10 per week regularly."

7

It is perefectly true that where she does not make direct payments towards the purchase it is less easy to evaluate her share. If her payments are direct she gets a share proportionate to what she has paid. Otherwise there must be a more rough and ready evaluation. I agree that this does not mean that she would as a rule get a half share. I think that the high sounding brocard "Equality is equity" has been misused. There will of course be cases where a half share is a reasonable estimation, but there will be many others where a fair estimate might be a tenth or a quarter or sometimes even more than a half.

8

But then it is said that there will be few deserving cases where the Court cannot find enough in the evidence to justify a finding that there was at the time of acquisition some kind of agreement or understanding or intention that the wife should have a share. I do not agree. In evidence the husband will say truthfully that the matter was never discussed and that he never considered the question of her having a share. Even if in cross examination he were to say that if he had been asked he might have been willing to make some arrangement, that would be quite irrelevant if the law requires a contemporary agreement. And a candid and honest wife would agree that the matter was never discussed, that her husband never indicated any intention to give her a share, and that she never thought about it. On such evidence no judge could possibly infer that on a balance of probability there was an agreement. On the other hand a more sophisticated wife who had been told what the law was would probably be able to produce some vague evidence which would enable a sympathetic judge to do justice by finding in her favour. That would not be a very creditable state in which to leave the law.

9

Returning to the crucial question there is a wide gulf between inferring from the whole conduct of the parties that there probably was an agreement, and imputing to the parties an intention to agree to share even where the evidence gives no ground for such an inference. If the evidence shews that there was no agreement in fact then that excludes any inference that there was an agreement. But it does not exclude an imputation of a deemed intention if the law permits such an imputation. If the law is to be that the Court has power to impute such an intention in proper cases then I am content, although I would prefer to reach the same result in a rather different way. But if it were to be held to be the law that it must at least be possible to infer a contemporary agreement in the sense of holding that it is more probable than not there was in fact some such agreement then I could not contemplate the future results of such a decision with equanimity.

Lord Morris

My Lords,

10

On the facts as found by Buckley J. in his careful judgment I have no doubt that he came to the correct conclusion. As on the general questions which have been discussed I set out my views in Pettit's case ...

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1 firm's commentaries
  • Weekly Tax Update - Monday 21 November 2011
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    • Mondaq United Kingdom
    • 24 November 2011
    ...mind or even acted with some different intention which he did not communicate to the other party" (Lord Diplock in Gissing v Gissing [1971] AC 886, 906). Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden, at para 69. In thos......
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    • 1 January 1999
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    • 1 January 1997
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