Gorulnick v Gorulnick
| Jurisdiction | England & Wales |
| Judgment Date | 29 November 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J1129-2 |
| Court | Court of Appeal |
| Date | 29 November 1957 |
[1957] EWCA Civ J1129-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson And
Lord Justice Morris
Mr. GERALD GARDINER, Q.C. and Mr., ERIC MYERS, Instructed by messrs Howard Kennedy & Co. appeared on behalf of the Appellant.
mr. K. BRUCE CAMPBELL, instructed by Messrs Franks, Charlesly & Leighton, appeared on behalf of the Respondent.
LORD JUSTICE HODSOR: This is an appeal from an Order of Mr. Justice Wallington dated 9th October, 1957. The application was by the wife who had presented a petition for divorce on the ground of cruelty for an injunction restraining her husband from living in or remaining with her in the house 7 Wren Avenue which belonged to the wife.
The petition is dated 4th September 1957 and an Answer has been put in by the husband denying that he has been cruel to his wife.
Affidavits have been sworn both by the wife and the husband and also a doctor who has sworn that what the wife says in her affidavit and in her petition is consistent with the condition of health which she, the doctor, found and might fairly be attributed to the husband's conduct. But the issue of cruelty has yet to be decided, and it is not contended that this Court can arrive on this interlocutory application at any conclusion as to the merits of the case.
Mr. Gardiner on behalf of the wife has not shrank from contending that as a natter of law, the house being the wife's house and not the husband's, he is entitled to cone to the Court and ask for an Order restraining the husband from entering it.
The first case to which we were referred is a decision of the Court of Appeal – symonds v. Hallett, 24 Chancery Division, 346. In that case the husband and wife had been physically apart for some time. The husband having had proceedings instituted against him for divorce or judicial separation claimed the right to go and to use the wife's house when and as he thought fit, not for the purpose of consorting with his wife but for his own purposes; and an interim injunction having been granted by Mr. Justice Chitty there was an appeal to the Court of Appeal by the husband. Lord Justice Cotton by his judgment shewed that the problem was regarded by him as a troublesome one and that he was very reluctant to be taken as saying that the husband in circumstances such as those was in the position of a stranger and as such could be excluded from the wife's house. Ha said at page 351: "Expressions have been used that she is entitled to be there as a feme sole and to be protected against her husband's acts as if he were a stranger. That is very true as regards property. But is the husband to be considered a stranger because the property is vested in her for her separate use? That is a point which those who assert that the husband is to be considered a stranger must prove". On the facts of that case he was of the opinion that the husband could not be considered as desiring to use or to enter the house as a husband to enjoy the society of his wife or to consort with his wife, and therefore he held that an injunction could stand. Lord Justice Bowen – who was of the same opinion – said in those particular circumstances he, thought the injunction could stand: "For this reason: the husband is not really asking for the benefit of the wife's society; he has no wish for that. The true effect of the affidavit is this that he complains of not being allowed the proprietary use of the house". Therefore the Lord Justice thought it was more convenient in those circumstances, the wife being clearly entitled to the house, that the injunction should stand.
A later decision of the Court of Appeal which is often referred to in this class of case was Shipman v. Shipman, 1924 2 Chancery, 140. In that case there was he petition for divorce or judicial separation pending. The wife who owned the house and was anxious to make a living out of the house by taking in lodgers and said she had been ill treated by her husband succeeded before Mr. Justice Russell in obtaining an interim injunction restraining her husband from entering the house or interfering with her possession. There, again, the same problem arose. Section 12 of the Married Womens Property Act, 1882, which had been passed before the case to which I last referred, provides that "Every woman, whether married before or after this Act, shall have in her own name against all persons whomsoever, including her husband, the same civil remedies and also (subject as regards her husband to the proviso hereinafter contained) the same remedies and redress by way of criminal proceedings, for the protection and security of her own separate property, as if such property belonged to her as a feme sole, bat, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort".
The case of Symonds v. Hallett was referred to and without reading the judgments it is clear to my mind that the members of the Court ware of opinion that on the true construction of Section 12 the husband could not be properly treated, notwithstanding the wide language of the Act, as if he had been a stranger, having regard to the special relationship which exists between husband and wife is that they have a duty to live together. Nevertheless all the members of the Court were agreed that the injunction should stand. Lord Justice Atkin and also the Master of the Rolls Sir...
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