INCONSISTENCIES AND INJUSTICES IN THE LAW OF HUSBAND AND WIFE
| Published date | 01 April 1953 |
| DOI | http://doi.org/10.1111/j.1468-2230.1953.tb02116.x |
| Author | O. Kahn‐Freund |
| Date | 01 April 1953 |
INCONSISTENCIES AND
INJI'STICES
IN
THE
LAW
OF
HUSBAND
AND
WIFE
(continued
from
p.
49)
I11
CREDITORS'
RIGHTR
AND
HOUSEHOLD
PROPERTY
As the la9 stands today, a creditor who has obtained a judgment
against
a
husband
or
a wife is often faced with insuperable
diffi-
culties
if
he tries to enforce the judgment against household assets.
It
is not intended to discuss all aspects of this problem.
It
would
be
possible to show that,
~.g.,
as regards bank accounts, the courts
have made
it
almost unbelievably easy for
a
married couple to
frustrate attempts by creditors to obtain a garnishee order
so
as to
enfarce
a
judgment against either the husband
or
the wife.
To
attach
a
joint account, the creditor must have a judgment against
both spouses, because the legal title is vested in both. He may,
perhaps, be able to prove that beneficially it belongs to the spouse
who
is
his debtor, but this
will
not help him, as was laid
down
by
the Court of Appeal in
Hirschhm
v.
Evans.45
On
the other haud,
however, if a bank account standing in the name of one spouse is
beneficially owned by the other, neither the husband's creditors nor
the wife's creditors will be able to attach it through garnishee
proceedings.
If,
e.g.,
the account stands in the name of the wife,
but all the payments in hare been made by the husband, the
husband's creditors cannot enforce
a
judgment against it because
the legal title vests in the wife, and the wife's creditors will,
as
in
Ifarrods,
Ltd.
v.
Tester,4b
be defeated by the proof that in equity
the account belonged to the husband. In this case,
i.e.,
where the
law turns against the creditor
"
regard must be had
to
the property
in equity,"" but no such regard is paid to equity where a joint
account is beneficially the property of the spouse
who
is
the judg-
ment debtor. All
the
creditor can do is to lodge
a
petition
in
bankruptcy and try his luck under section
42
of the Bankruptcy
Act,
1914.
This
problem of bank accounts has been mentioned by way of
preface for what is to follow. It shows how little the courts have
felt able to protect creditors against this type of manipulation
of
assets between husband and wife, against that shifting of
45
r19381
3
-411
E.R.
491.
(Slesser
and
Mach'innon
I;
J.T..
Grepr
L
a.
dissenting
46
L1937]
2
All
E.R.
236
4-
Per
Lord
Wright
M.R.
[1937]
2
All
E
R
at
11
2.10
(Court
of
Appeal
Lmn1
W~ight
M
R
,
Rorner
and
Scott
Id
JJ.)
14s
-+P~IL
1953
THE
LAW
OF
HUSBAND AND
WIFE
149
property from one to the other
or
from one to both jointly, whicli
was made easy by the generalisation
of
the law
of
separate property
through the married women’s property legislation. The situtrtioii
as
regards bank accounts gives
a
preview
of
the results flowing
frorii
a law which enables the spouses to present to the world
thitt,
as
separate which is
in
fact joint property, and that as joint propcrty
which is in fact separate.
We are here concerned with tangible
I
assets, with
“
choses in
possession.” As regards the wife’s clothing and jewellery, the
position of her creditors is, in certain limits, safeguarded by
decisions such as that
of
Jeune
P.
in
Tmker
v.
Tasker,48
and
perhaps more significantly, by that
of
the Court of Appeal in
Masson
Templier
L$-
Co.
v.
De Pries.49
In
the first of these two
cases
it
was held (in connection with an application under section
17
of the Act of
1882)
that presents of jewellery by the husband to
the wife were, in the absence of evidence to the contrary,
to
be
considered as absolute
gifts
and not as a loan of
“
paraphernalia.”
In
the
De
Fries
Case
clothes bought by the wife with money
supplied by the husband were held to be her property and the old
law of
“
paraphernalia
”
was, by Farwell
L.J.,
said
to
have passed
into legal history with the enactment
of
the statute
of
1882.”
Nevertheless, even as regards assets of this type the vistas opened
by
Rondeau, Le Grand
Q
Co.
v.
Marks51
are disturbing. There
the Court
of
Appeal held that, while a husband could not be
presumed only to have lent
to
his wife the clothes she bought with
the money he gave her, there was nothing to prevent him from
making
an
“arrangement
”
with her that they should be his
property and worn by her only during his pleasure. Such an
arrangement was only a fact from which the court was able to
draw an inference as to the intention
of
the parties, it was not a
“
contract
”
capable of being assailed
on
grounds such as lack
of
consideration
or
violation
of
public policy
or
fraud
on
the creditors.
It
is not easy to see why the court should have gone out
of
its
way
to countenance what
no
reader of the report can help suspecting
to have been a machination by the spouses to defeat their creditors.
All this, however, fades
into
insignificance compared with the
position now .prevailing with regard to household furniture. One
cannot resist the temptation of looking at this problem for a
moment from the point of view of common sense and without
considering the cases which have been decided. Husband and wife
live together in amity in
a
house filled with
normal
household
furniture. The furniture would, by the vast majority of married
couples and their friends, be considered as
‘‘
their furniture,” and
48
[1895]
P.
1.
49
[1909]
2
K.B.
831.
(Cozens-Hardy M.R.; Farwell and Kennedy
L.JJ.)
50
At
p.
839.
51
[I9181
1
K.B.
75.
(Court
of
Appeal:
Pickford
and Bankes
L.JJ.,
Sargnnt
J.;
affirming Bailhache
J.
[191i’]
2
K.B.
636.)
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