Hall v Hall
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS,LORD JUSTICE BUCKLEY |
| Judgment Date | 19 January 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0119-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 1971 |
[1971] EWCA Civ J0119-4
In The Supreme Court of Judicature
Court of Appeal
Appeal by husband from order of His Honour Judge Bernard Lewis on 31 December, 1970.
The Master of the Rolls (Lord Denning),
Lord Justice Sachs and
Lord Justice Buckley
Mr. HOLROYD PEARSE, Q.C., and Mr. HUGH BENNETT (instructed by Mesers. Bircham & Co.) appeared on behalf of the appellant husband.
Mr. NORMAN LERMAN, Q.C., and Mr. DAVID LATHAM (instructed by Messrs. s. Rutter & Co.) appeared on behalf of the respondent wife.
THE MASTER OF THE ROLLS; This is an unfortunate dispute. The husband and wife married in January of 1961. He was 28 and she 21. They had two children, a girl who is now nearly 9, and the next a boy of 8. The husband is a chartered accountant and now a company director. They are in a good position in life, but unfortunately differences arose between them. So much so that in 1967 the wife left for a few months; but she came back. They made it up and carried on together. In April of 1968 the husband bought a lovely house, Eastgate House, Hockering, Woking, Surrey. It is a large house with six bedrooms, dining room, drawing room, study, playroom and so forth. There they had a daily Roman coming in to help. The husband went to London each day to his work. The wife was at home with the children, taking them to school and back, and doing the usual things a wife does. Lately she has taken to modelling and has been away from the house much more.
In November or December 1970, the wife decided in her own mind that they must part. She seems to have told this to the dally woman who told it to the husband. He was afraid that his wife might leave and take the children with her. So on the 11th December 1970 he made the children wards of Court. His solicitors wrote to the wife saying that this was done for the sake of the children. A few days later, the wife retorted, on the 17th December, 1970, with a petition for a judicial separation on the ground of cruelty. It was a very long petition. She set out the history of the married life complaining of various things she could remember. On the same day she took out a summons asking for an injunction to restrain her husband from molestingher. Furthermore - and this was the serious part - to exclude his from the house - his house where he was there with her and the children.
The summons was due to be heard on the 23rd December, but for some reason it was not. They spent Christmas together in the house. They had a happy day. The wife prepared the meals. The children enjoyed themselves. We have seen their letters telling what they did. It was a normal happy family Christmas.
On the 31st December the summons came before Judge Bernard Lewis. He thought it was a difficult case. In view of the wife's allegations, he thought it was right for the time being for the husband to leave the matrimonial home. So he ordered the husband out. The Judge granted a stay for seven days. It was further stayed by one of the Lords Justices. Now, the appeal comes before us today. We have had the benefit of further affidavits put before us on behalf of both sides.
Although the house belongs to the husband, the Court has power to exclude him from it either in divorce proceedings, see Silverstone v. Silverstone 1953 P. 174. or at common law, see Curasz v. Gurasz 1969 3 M. L. R. 482, or under the Matrimonial Homes Act, 1967, see Tarr v. Tarr (in this Court on the 14th December, 1970, but not yet reported). The power was exercised only last week when the husband had brought his mistress into the house, see Jones v. Jones, reported in "The Times" newspaper of 22nd January. But I would like to say that an order to exclude one spouse or the other from the matrimonial home is a drastic order. It ought not to be made unless it is proved to be impossible for them to live together in the same house. It is difficult to draw the line, as is shown by a case which camebefore this Court in 1964. It is only reported in The Law Journal, 108 Solicitors Journal, at page 520: Aklnxbehin v. Akingbehin. There was a difference of opinion in the Court. The majority of the Court thought that unpleasantness and inconvenience was not a sufficient ground for ordering one spouse out. I agree. Such an order ought not to be made unless the situation is impossible. I would add that it is important as well to have regard to the interests of the children. In the ordinary way, the longer they can be brought up together in one house with their parents, the better for them.
In the present case the situation is not at all impossible. It is quite tolerable. The father goes off early in the morning and back late in the evening. The children go off to...
To continue reading
Request your trial
- Jayakumari a/p Arul Pragasam v Suriya Narayanan a/l v Ramanathan
- Chan Ah Moi v Phang Wai Ann
- Koh; Koh
-
Brown v Brown
...referred us, in particular the case of Burke v Burke The Times 25th November 1986. Further, Mr. McCandless referred us to the case of Hall v Hall [1971] 1 WLR 404. The facts of the case are immaterial but in particular he referred us to a passage of the judgment of Sachs LJ at page 407 in w......