Insolvency and the Matrimonial Home — The Sins of the Fathers: In re Citro (A Bankrupt)
| Published date | 01 March 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb01878.x |
| Date | 01 March 1992 |
7;he
Modern
Law
Review
[Vol.
55
publisher ought to have realised that the statement did not represent the real view
of the author, his defence of fair comment will not be negated, for
it
is well established
that carelessness alone does not constitute rnali~e.~’ Indeed, malice on the part of
persons such as newspaper editors may, in the absence of some form of ‘campaign’
against the plaintiff, be very difficult to prove.
With a wholly objective test of fairness approved in
Telnikoff,
the accountability
of non-author publishers has not only been made personal, rather than dependant
upon a third party, but it has also been made substantially less strict. This is open
to the criticism that there is no longer any incentive for newspapers to check,
or
even to request, that writers submit only their own bona fide views for publication.
Furthermore,
it
might
be
thought that there are sound practical reasons for imposing
upon a newspaper the risk of liability for the publication of an opinion which was
not actually held. However, one advantage of the decision which probably overrides
these considerations is that newspapers, faced with a burden of inquiry limited to
an assessment of its objective fairness, may now be more willing to publish criticism.
Insolvency and the Matrimonial Home
-
The Sins
of
the Fathers:
In
re
Citro
(A
Bankrupt)
David
Brown*
In
exercising the discretion under section
30
of the
Law
of Property Act
1925
(to
order
or
refuse an application to sell the matrimonial
or
quasi-matrimonial home
held under a trust for sale), courts in recent years have followed different principles
in
those cases where a trustee-in-bankruptcy is applying for the order as a prelude
to realising the beneficial share of an insolvent co-owner, from those where one
co-owner applies for an order against another who wishes to remain, whether alone
or
with children. In the former,
the
courts have held that, the question being ‘whose
voice
in
equity should prevail?’ the answer should usually be the trustee-in-
bankruptcy’s voice on behalf of the creditors, who should not be kept out of their
money longer than necessary.’ In the latter, whilst
prima
facie
the order under
section
30
must be one of sale,2 the courts have developed the concept of the
‘collateral purpose’ underlying the trust for sale, that purpose usually being occupation
as a family home,
so
that the sale may be postponed if the purpose still subsists,
ie the marriage,
or,
if
children exist, a wish for the remains of the family unit to
stay in the home for a given period (for example, until completion of a child’s
schooling).’
The judgment of the Court of Appeal
in
In
re Citro,
to the extent that it upholds
and enhances this distinction, would seem superficially to add nothing new. This
41
*Faculty of
Law.
University of Birmingham.
re
Solomon
I19671
Ch
573;
re Turner
[
19741
1
WLR
1556;
re
Builev
[
19771
I
WLR
278;
re Luwrie
(A
Bankrupt)
[I9811
3
All
ER
353.
re
Muyo
[I9431
Ch
302.
re Ewrs Trust
[
1980)
1
WLR
1327.
See eg
Cotton
U
in
Capiful
and
Counties
Bunk
v
Henty
(1880)
5
CPD
514,
538-539.
On
appeal
to the
House
of
Lords
on
a different
point,
see
(1882) 7
App
Cas
741.
I
2
3
284
To continue reading
Request your trial