Harvey v Harvey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,MR. JUSTICE PURCHAS,LORD JUSTICE OLIVER |
| Judgment Date | 12 October 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J1012-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 October 1981 |
| Docket Number | 81/0406 |
[1981] EWCA Civ J1012-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE WIILLESDEN COUNTY COURT
(His Honour Judge Hill-Smith)
Royal Courts of Justice
Lord Justice Ormrod
Lord Justice Oliver
and
Mr. Justice Purchas
81/0406
80 D 615
MISS S.I.B. SOLOMON (instructed by Messrs Stanley Sovin & Partners, solicitors, London) appeared on behalf of the Appellant (Petitioner).
MRS. N. PEARCE (instructed by Messrs Hart Fortgang & Co., solicitors, London) appeared on behalf of the Respondent (Respondent).
I will ask Mr. Justice Purchas to give the first judgment.
This is an appeal from an order of His Honour Judge Hill-Smith made on 14th July 1981. The main and relevant part of the order concerned the matrimonial home at 143 Wakeman Road, London NW10. There were other orders that were made and which are mentioned in the Notice of Appeal, but the appeals relating to periodical payments and payments to the children have not been pursued before us and I shall not make further reference to them.
The learned judge made an order in relation to the matrimonial home which provided that the respondent father, who at that time was in occupation, should vacate it with the purpose of the mother returning with the children. The order also provides that the property should be held in the joint names of the two parties to the marriage, on trust for sale in equal shares, that sale to be postponed until the youngest child of the family, Deborah, should attain the age of 16 years or complete her full-time education, whichever was the later date and then further provided that the mother should be at liberty to purchase the husband's share at a valuation then to be made.
Unless the circumstances of the family alter dramatically during the next few years, the latter part of that order would appear to be mainly academic in all the circumstances.
The short history of the family, relevant to this appeal, is as follows. The parties were married on 5th June 1960. There were in fact six children. We are concerned with only three, two of whom are still under the age of 18; Deborah who was born on 2nd June 1969, and Anthony who was born on 8th September 1967. There is also a daughter, Selma, who is over 18 but who, in fact, lives with her mother. If the mother returns to the matrimonial home it is expected that she will also return to live there with her mother, brother and sister.
The marriage broke down in 1979. The wife left with the children to whom I have referred, in May 1979. Since then she has in effect been away from that home, which has been occupied by the father. The father has supplemented his income by allowing two lodgers to use parts of the premises. We have been told that each has a room to himself and shares accommodation such as the lavatory, bathroom and kitchen.
The wife's petition was dated 8th July 1980. A decree nisi was pronounced on 9th January 1981, and that was made absolute on 20th May 1981. Although we are not concerned in detail with it, the first step thereafter, we have been told, was an application made by the wife to enable her to get back into the home, but this was bound to fail and, indeed, it did fail. The more common step of applying for an ouster of the father during the currency of the divorce proceedings was not apparently followed.
The matter came before His Honour Judge Hill-Smith upon the mother's application for ancillary relief in the ordinary way when the learned judge made the order to which I have referred. His order has been attacked on various grounds, the main ground being that the learned judge erred in law and/or misdirected himself in holding that there should be a transfer of property order in the Mesher v. Mesherform. The order in the circumstances of that case was clearly correct, but the general form of order seems to have become enshrined in this area of litigation as something of a touchstone. It is perhaps helpful to remember that the matters to be taken into consideration in every case depend on its particular circumstances, of course, but the tests to be applied are very clearly laid down in section 25 of the Matrimonial Causes Act 1973. The main ground of this appeal is that the learned judge, instead of going back to those considerations, merely followed this particular form of order which, in the circumstances of this case, may not have been the correct approach.
Something has happened since the learned judge was seized of this matter, and it is only right that I should mention it. As a result of his order, the husband has left the home and has been able to avail himself of the assistance given by the local authority and is now securely housed in council accommodation. If and insofar as I hold that the course the learned judge took was not the correct course, it must be remembered that he would not have known how successful his order would be in enabling the husband to obtain further accommodation. But that is the position today. The husband is now securely housed and so the problem remains, what is to be done within the context of section 25, with the limited assets available to this family?
The learned judge has set out his findings of fact very clearly and I can refer shortly to his judgment. The house itself, with vacant possession, has a value of £28,750. The outstanding mortgage is £3,130. The net equity, therefore, is something over £25,000 by the time one takes into account the costs of realising that asset, if it was to be realised. There is an outstanding mortgage...
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