Halden v Halden
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DIPLOCK,LORD JUSTICE RUSSELL |
| Judgment Date | 15 July 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0715-4 |
| Court | Court of Appeal |
| Date | 15 July 1966 |
[1966] EWCA Civ J0715-4
In The Supreme Court of Judicature
Court of Appeal
From Mr Registrar Kinsley
The Master of The Rolls
(Lord Denning)
Lord Justice Diplock and
Lord Justice Russell
MR BRYAN ANNS (instructed by Messrs Hillearys) appeared as Counsel for the Appellant.
MR GRANT (instructed by Messrs Lewis & Shaw) appeared as Counsel for the Respondent.
In this case husband and wife married as long ago as 1933. They have one child, a daughter, who is now married. In recent years the marriage has broken up. The matrimonial home was at 45 Beech Hall Road, Highams Park in London. The husband seems to have got involved with another woman. Since 1961 he has been committing adultery with her. So much so that he has got another house, 17 Westfields, Nettleswell, Harlow, which he has bought with the aid of a bank mortgage. He has installed his mistress there and he lives there with her.
When the wife went to the Magistrates for maintenance on the ground of his adultery, they made an order against him ordering him to pay 7. 10s.0d. a week. In the course of the hearing he was asked by the Magistrates whether he was prepared to give an undertaking not to sell the matrimonial home, 45, Beech Hall Road which was in his name. He refused to give any such undertaking. The Magistrates ordered £7. 10s.0d. to be paid as maintenance for the wife. But in view of the husband's statement to the Magistrates (that he would not give an undertaking not to sell the house) the wife took out an application under Section 17 of the 1882 Act asking for an order to restrain him from selling the house unless he found her alternative accommodation. After hearing all the evidence, the Registrar made such an order in the form which I may cell the Lee v. Lee form, which is reported in 1952, 2 Queen's Bench, p. 489.
Now Mr Anns on behalf of the husband appeals to this Court. The first point which he takes is that the Registrar had no jurisdiction to make the order. He points out that in this order by the Magistrates there is a non-cohabitation clause that the wife was no longer bound to cohabit with her husband. She could have applied to have it removed. It has not been removed. I am dismayed that it has not been removed. It is not the practice to put the clause in. It ought not to be continued except at the wife's request.
Accepting that the clause is still there and there is no duty to cohabit, nevertheless it is plain from my own decision in Hutchinson v. Hutchinson, as long ago as 1947, 2 All England Reports, p. 792, that it is no ground for saying that the wife cannot be protected in the home. In that very case there was an order for judicial separation and an order for maintenance of £250 a year if she moved out of the matrimonial home and £150 if she...
To continue reading
Request your trial
-
Jackson v Jackson
...both Jointly - the Court, will not in the ordinary way order her out unless he provides her with suitable alternative accommodation, see Halden v. Halden. 1966 1 W. L. R. 1483, where the house was in the husband's name alone: and the recent case before Mr. Justice Stamp of the ( Hardy's Tru......
-
Cattle Breeders Farm (Pvt) Ltd v Veldman
...her the means of acquiring such suitable accommodation. That appears from such cases as Ainsworth's case, supra, Halden v Halden, (1966) 3 All E.R. 412, and Owen v Owen, 1968 (1) SA 480 (E) at p. 483. 1974 (1) SA p172 Beadle CJ Whether even if the husband makes such an offer the Court still......
-
Cattle Breeders Farm (Pvt) Ltd v Veldman
...her the means of acquiring such suitable accommodation. That appears from such cases as Ainsworth's case, supra, Halden v Halden, (1966) 3 All E.R. 412, and Owen v Owen, 1968 (1) SA 480 (E) at p. 483. 1974 (1) SA p172 Beadle CJ Whether even if the husband makes such an offer the Court still......