Hine v Hine

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE DONOVAN,LORD JUSTICE PEARSON
Judgment Date09 July 1962
Judgment citation (vLex)[1962] EWCA Civ J0709-3
CourtCourt of Appeal
Date09 July 1962
Irene Ellen Hine
Applicant, Appellant
and
Edgar Victor Howard Hine
Respondent, Respondent

[1962] EWCA Civ J0709-3

Before

The Master of The Rolls (Lord Denning)

Lord Justice Donovan and

Lord Justice Pearson

In The Supreme Court of Judicature

Court of Appeal

From his Honour Judge Duveen

Watford County Court

MR ROY BELDAM (instructed by Messrs Beachcroft & Co., Agents for Messrs Hanslip Ward & Co., Harwich) appeared as Counsel for the Appellant.

MR B. CAPSTICK (instructed by Messrs penman Johnson & Ewins, Watford) appeared as Counsel for the Respondent.

THE MASTER OF THE ROLLS
1

This is an application under Section 17 of the Married Women's Property Act, 1882, which says: "in any question between husband and wife as to the title to or possession of property, either party may apply to the Court and the Court may make such order with respect to the property in dispute as it thinks fit". That section gives an unfettered discretion to the Court subject to certain principles which have been laid down.

2

But before I consider them, I will summarise the facts of this case. The husband and wife were married in March of 1937. After 21 years of marriage they separated in 1958 when the husband left home. There is one child, a daughter now of full age. And the question is what is to be done about the latest matrimonial home they had, 131 Westfield Avenue, Watford. It has to be sold: everyone agrees as to that, and the question is: how are the proceeds of sale to be divided? The husband was a printer at Watford and they had five houses altogether. When they first married they had a house at Watford, 442 Bushey Mill Lane. They bought it on mortgage; they apparently put up in ready money themselves the sum of £605. It was in the husband's name. They were there for some eight years, when the property was sold and the mortgage paid off: it was sold for £1,660 and they made a profit of £950. It is interesting to notice that the parties divided that profit between them half and half. That was in 1945. Then from 1945 until 1950 their home was at Dovercourt. The husband still worked at Watford but they went to Dovercourt where the wife's father had house property which he provided for them and where they lived. The wife also bought a business there, I think with the proceeds of the sale and a legacy. I need not go into the details of those houses at Dovercourt because in 1950 the last house at Dovercourt which they had, "atteneys", St. Michaels Road, was sold and the proceeds were undoubtedly the wife's. Theyhad come from her father or from her little business. It was undoubtedly her own money. In 1950 they bought the house now in question, 131 Westfield Avenue, Watford. It cost £2,950. To is clear beyond question that the wife provided out of her own moneys the sum of £2,000 towards the purchase of that house. £950 was on mortgage with a building society, to which was added another £150 for costs, so there was £1,100 altogether on mortgage with the building society. The conveyance of the house was taken in the joint names of both husband and wife. The mortgages was in the joint names and both were responsible for it. The wife said (and the Judge accepted her evidence) that the reason she had it put in joint names was 30 as to avoid death duties. It was intended at that time – of course they did not contemplate that there would ever be a separation -that if 3ho died first, the house would be his, and if he died first, the house would be hers. They lived there during the years onward from 1950. The daughter was about 12 years of ago when they went there in 1950 and she was brought up in the house. The husband went out to work as a printer and paid the wife £5 week for housekeeping and paid the mortgage installments of both principal and interest, and the rates. The wife looked after the house and I think occasionally took in a paying guest. In 1955 the marriage, according to the husband, was beginning to break up. Apparently he won some £580 on a football pool end he paid it into a separate account without telling his wife. After he left he paid her some maintenance, but I need not go into the details of it. The question, now that they have separated, is: What is to be done about the proceeds of the house which is to be sold?

3

The Judge felt bound to divide the proceeds equally between them. He thought that the balance of the mortgage should be paid off from the proceeds of sale, but apart from that, the proceeds of sale arc to be divided equally between them.

4

The Judge said that because the wife said she did it to avoid death duties, she must be taken to have intended the property to belong to them equally and was to be equally divided. He said: "Regrettably I am bound to make an order that the property be sold, that the applicant and the respondent each had a half interest in the house and that the net proceeds of sale be divided equally between the parties". He said: "Regrettably I am bound". I feel in that very phrase there is a misdirection by the Judge because, as I read Section 17, the Judge is not bound "regrettably" to decide against what fairness and justice demands.

5

We are here considering a "family asset", the matrimonial home, something acquired by the spouses for their joint use, with no thought of what is to happen should the marriage break down. In such a case it is rarely of any use to ask what the parties intended to be done if the marriage broke down: for as a rule they do not contemplate any such thing. And it is often of no use to ask what were their legal rights, nor even their equitable rights, such as whether there was a presumption of arise advancement: for those rights, as often as not arise, by operation of equity on the assumption that the marriage will not break down but will continue until parted by death. It seems to me that the jurisdiction of the Court over family assets under Section 17 is entirely discretionary. Its discretion transcends all rights, legal or equitable, and enables the Court to make such order as it thinks fit. This means, as I understand it, that the Court is entitled to make such order as appears to be fair and just in all the circumstances of the case.

6

I know that in some of the cases when this jurisdiction was being developed, there were some observations made to the effect that established rights could not be affected and that the presumption of advancement should be considered. But more recently the Courts have been anxious, as I think rightly, not to fetter the discretion which the statute confers, see Short v. Short 1960, 1 W. L. R., 834. Two principles have, however, emerged in exercising this discretion, The first is that when you can clearly see that the parties intended that one piece of property or one amount of money should belong to one or the other in any event, that intention should prevail. The second principle only arises where no such intention appears, I venture to state the principle in the words which I used in Rimmer v. Rimmer, 1953, 1 Q. B. at "It seems to me that when the parties, by their joint efforts, save money to buy a house, which is intended as a continuing provision for them both, the proper presumption is that the beneficial interest belongs to them both jointly. The property may be bought in the name of the husband alone, or in the name of the wife alone", or I would add in this case in the name of husband and wife jointly, "but nevertheless if it is bought with money saved by their joint efforts, and it is impossible fairly to distinguish between the efforts of the one and the other, then the beneficial interest should be presumed to belong to them both jointly".

7

Applying these principles, it seems to mo that in regard to the £2,000, the first principle applies, The £2,000 was clearly the wife's money, intended to be hers in any event. The findings of the Judge make that perfectly clear, They were moneys coming from her...

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