Hanlon v Hanlon

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date17 October 1977
Judgment citation (vLex)[1977] EWCA Civ J1017-1
Docket NumberConsolidated Suit Nos: 13289 of 1971 and 13293 of 1973
Date17 October 1977

[1977] EWCA Civ J1017-1

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the High Court of Justice Family Division

(Mr. Justice Rees)


Lord Justice Stamp

Lord Justice Orr


Lord Justice Ormrod

Consolidated Suit Nos: 13289 of 1971 and 13293 of 1973
Mary Isabella Hanlon
Peter James Hanlon

MR. NICHOLAS WALL (instructed by Messrs. Smith & Harrison, Solicitors, Waltham Cross) appeared on behalf of the Petitioner (Appellant).

MR. R. JOHNSON (instructed by Messrs. W.H. Hopkins & Co., Solicitors, London) appeared on behalf of the Respondent (Respondent).


I have asked Lord Justice Ormrod to deliver the first judgment,


This is an appeal from an order which was made by Mr. Justice Rees on 26th April of this year in a case concerning the future of the matrimonial home. The litigation has had a long, and rather sad, history, which is not due to the fault of either of the parties.


The bare facts of the family are these: The parties were married on 2nd March 1957. The husband is a police officer, now aged 49; the wife is a Community Nurse now aged 44. They separated on 10th July 1971 and on 6th October 1971 there was an injunction excluding the husband from the matrimonial home, which may have had long term effects on the emotional reactions of the parties or one of them about the former matrimonial home, or not - one does not know.


The marriage was ultimately dissolved after two years' separation on 15th May 1974. The parties had lived at No. 106, Trinity Lane, Waltham Cross, which is an ordinary three-bedroom/two sitting room type of house. The marriage, at the time when it broke up, had lasted for 14 years. There are four children, all of whom are still living with the wife at 106, Trinity Lane. The family consists of two boys, now both over 18 and both in apprenticeship; a girl called Katherine, who is 14 and a girl called Clare who is 12. The house itself was bought in 1963 in the sole name of the husband, for £4,200, with a mortgage of £3,900, the balance being found, we are told, from the husband's bank. The current value of the property is said to be about £14,000; the mortgage outstanding is £3,639, and for all practical purposes it has been treated in this litigation as having an equity value of roughly £10,000. There are at the moment arrears under the mortgage amounting to something slightly over £400;those arrears have arisen since the wife became responsible for making the mortgage repayments and she recognises, without any question, that the liability to pay those arrears is hers. The husband had been paying the mortgage instalments up to 1976.


The matter first came before the learned Registrar in February of 1976. That was a period when the case of Mesher v. Mesher was being regarded as the "bible" as far as this type of case is concerned. The consequence, as Mr. Wall has told us in the course of his submission, was that the wife's legal advisers took the view that the best she could hope for, on the facts of the case, was a Mesher v. Mesher type of order, namely, that she should remain in occupation of the matrimonial home until the youngest of the children was 17, or 18 as the case may be, whereupon it would be sold and the proceeds divided equally between herself and her husband. At the time when they were before the learned registrar both sides recognised that that, type of order produced a number of unfortunate and undesirable results, with which I shall deal in more detail later.


In the result, the learned registrar decided that the best way of dealing with the matter in the interests of both parties was, in effect, to order an immediate sale of the property, but recognising that this would have the effect of destroying the family home for the wife and her four children, he suggested, and eventually ordered, that the wife should buy the husband out, buying him out on the footing that their beneficial interests in this house were equal; that meant in practice that the wife had to raise £5,000 to buy out the husband's interest.


This suggestion apparently was put forward at a comparatively late stage, and the wife's advisers had not had an opportunity of going into it in detail particularly as to whether the wife could finance such an arrangement.


After the registrar's order, investigations were made and it became at once apparent, as everyone agrees now, that she could not possibly finance it. The reasons for that were - and it was even more obvious then that it might have been today - that in order to raise the further £5,000 she would have to pay off the existing mortgage of £3,600, making a total of something over £8,000 that she would have to raise, on terms which, of course, were more onerous relatively, pound for pound, than the old mortgage; and also she had to carry out repairs. There was a controversy about the cost of the repairs; she put it at some £900, but it may well be that that was an overstatement. The husband's advisers put it at about £200, but that was probably based on inadequate information. No finding as to the precise figure was made by the learned judge, or indeed could have been made; it is sufficient to say that the wife, in order to get any further mortgage on this property, would have to carry out the minimum repairs required by the Building Society, which presumably would have cost her something between those two figures. Taking into account her income position, it was apparent that she could not possibly finance any such mortgage, so it became impossible to comply with the registrar's order.


So the wife applied for leave to appeal against this order, out of time. Mr. Justice Faulke rejected her application and refused her leave; she came to this court; this court gave her leave to appeal and the matter went back to Mr. Justice Rees and hence back again to this court.


The relative positions of these two people, who are, in effect single adults now, and have been since 1971, is that the wife's income, gross, is £4,176. We have been supplied with most helpful calculations of her net income on various assumptions, and there is a plain and unquestioned discrepancy between her netincome, however it is assessed, and her outgoings. Her outgoings at present unquestionably exceed her net income, allowing for the fact that the two boys make a contribution to her of about £7. per week each which, although very small, is not suggested could be substantially increased while they are in apprenticeship. So the wife is subsidising them at the present time. The order in respect of the two girls was £6. per week each which plainly involves a considerable amount of subsidising of their upkeep by the mother as well.


On the other side of the picture, the husband is living alone; he has a gross salary as a police officer of about £4,200, and he has at the moment the enormous advantage of living rent free in a police flat. He has no call on his income apart from keeping himself and making the payments for the children under the order. There was some evidence that he had paid for various other things for the children from time to time.


The argument that was put before the learned registrar by Mr. Johnson was that it was essential that both these people, to use his own phrase, should get on to the "property escalator" as soon as possible, and that the best way of doing that was an order in the form made by the learned registrar; the idea being that with £5,000 each, they would each be able, if they wished to do so, to raise mortgages which, if inflation continued, would represent a steadily decreasing proportion of the inflated value of the house, or houses, which they were occupying or proposing to occupy. There was no clear evidence at all that the husband had any intention whatever of giving up his police flat so long as his employment...

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26 cases
  • Dunford v Dunford
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