Jackson v Jackson
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE PHILLIMORE,LORD JUSTICE MEGAW |
| Judgment Date | 12 July 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0712-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 1971 |
[1971] EWCA Civ J0712-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendant, the wife, from order of Mr. Justice Plowman on 14th October, 1970
The Master of the Rolls (Lord Denning),
Lord Justice Phillimore and
Lord Justice Megaw
In the Matter of the trusts for sale affecting No. 1 Montford Close, Northampton
and
In the Matter of the Law Property Act 1925 and
In the Matter of the Trustee Act 1925
Mr. H. E. FRANCIS, Q. C., and Mr. DENNIS NAISH (instructed by Messrs. Jaques & Co., agents for Messrs. Frank Jones & Harley of Northampton) appeared on behalf of the Appellant Defendant.
Mr. PETER OLIVER, Q. C., and Mr. C. A. BRODIE (instructed by Messrs. Wilkinson Kimbers & St addon, agents for Messrs. Canning & Kyrke of Chard, Somerset) appeared on behalf of the Respondent Plaintiff.
This is another case between husband and wife. The matrimonial home is in joint names. The wife is living in it. The husband wants it to be sold with vacant possession. For this purpose be applies to the Court for an order under section 30 of the law of Property Act 1925.
The husband and wife married over forty years ago, on the 18th April, 1927. The husband is now 67 and the wife 65. They have only one child, a daughter, who was born in 1934. She is now married and living in Canada with a "family of her own.
Husband and wife have had several homes in their time, but we are concerned with the latest one, No. 1 Montfort Close, Northampton, It was acquired in this way. On the 16th July 1957 they bought a plot of land for £200. The conveyance was to then, the purchasers "To hold unto the purchasers as Joint tenants", and it contained a declaration that "the purchasers shall hold the said property upon trust to sell the same with power to postpone the sale thereof and shall hold the net proceeds of sale and other money applicable as capital and the net rents and profits thereof until sale upon trust for themselves as joint tenants."
They built a house on the site at a cost of £2,000 and raised the money for it on mortgage. The husband was a shoemaker. He paid his wages over to his wife. She used herself to work occasionally. Their earnings formed a pool out of which she paid the mortgage instalments, the rates, repairs and so forth. The mortgage has all been paid off. The husband no doubt paid much more than the wife, but it is accepted - I have no doubt rightly - that they own the beneficial interest in equal shares, that is, half and half.
The wife was an excellent wife in some ways. The husband himself said: "No one could have done better in looking afterthe home and cooking as she did, My meal was always ready." But unfortunately in other ways she made things very unhappy for him. One of the troubles was that the husband was fond of the daughter, but the wife disapproved of her. The husband wanted to make a will in the daughter's favour. But the wife disapproved. She thought the daughter would spend it in the wrong way. She wanted the will made in the grandson's favour. Another trouble was that the wife said on a number of occasions that the wanted the house sold, as she wanted money of her own so that she could live without him. She admitted in evidence that she said she wanted it, but she added "He used to provoke me. I was going out of my mind." Her attitude towards the carriage is shown by a statement in his affidavit which she admits: "About two months before I left home, the defendant returned to me our engagement ring, a watch which I had given her, and our marriage lines. At about the same time, she burned all the photographs taken during our marriage including oar daughter's wedding photographs. From about September 1966 she ceased to wear her wedding ring." The wife admits it all, but says that "The plaintiff provoked me. I have bitterly regretted it ever since." On one occasion she was so upset that she packed her bags and put them on the landing to leave. This too she admits, but she says she was driven to it. By December 1966 the husband says things had got to such a state that he could stand it no longer. He left home and went to live with his daughter. Thereafter he paid his wife £4 a week.
In April 1967 the wife took out a summons against the husband for desertion. The wife gave evidence saying that she wanted the husband to come back and live with her. The husband gave evidence of the troubles which I have stated. TheMagistrates found that the husband bad deserted the wife and ordered him to pay her £5. 10s.0d a week.
That finding of desertion is, of course, "some" evidence that the husband deserted his wife, but no more, see Ellis v. Ellis 1962 1 W. L. R. 450. I rather expect the Magistrates thought that the husband, after all these years, ought to pay something to the wife, no matter who was really to blame. A year or two later he retired from work and the amount payable was reduced to 1/- a week. Both are now on retirement and supplementary benefit. Each is getting about £6 a week.
There is no suggestion that either party is going to seek divorce. But the Judge has found that the marriage has irretrievably broken down and that the prospect of the husband returning to the former matrimonial home are nil.
The daughter and her family have now emigrated to Canada. The husband wants to go and live with her there. For this purpose he would like the house to be sold and have his half-share in cash.
The husband, no doubt, took legal advice: and on the 11th September 1967 he served notice on the wife purporting to sever the joint tenancy in equity created by the conveyance. That was, however, a useless exercise because, so long as she remained in occupation, it did not enable him to turn her out, or entitle him to payment from her for her occupation, or to realise his share in any way.
In August 1968 the husband's solicitors asked the wife's solicitors that the house be sold: but she did not agree. On the 5th March 1969 the husband took out a summons under section 30 of the low of Property Act 1925. which was afterwards amended by adding an application for the execution of the trust.The Judge ordered that the house be sold with vacant possession. The wife appeals to this Court. Each side puts forward its arguments cogently. Mr. Francis on behalf of the wife says: The wife was deserted by the husband. The Magistrates have so found. The house was joint owned by them both. She is entitled, as a deserted wife, to stay there. He relies on the recent case of Gurass v. Gurass, 1970 P. 11. Mr. Oliver on behalf of the husband replies: This house was Joint property held under a trust for sale. The marriage has irretrievably broken down. So the primary object of the trust - the provision of a matrimonial home - has broken down. The house should be sold so that each can have his share. He relies on Bawlings v. Bawlings, 1964 P. 398.
In the present case the house was in joint names with an express declaration of trust for sale: but it is of general application. There are many eases nowadays in which the matrimonial home is in the names of one or other, but is owned beneficially by them both Jointly in equal or other shares under an imputed trust as laid down in Gissing v. Gissing 1970 3 W. L. R. 255, and Falconer v. Falconer, 1970 1 W. L. R. 1333. Such imputed trust also means that the legal estate is held in trust for sale, see section 36(1) of the Law of Property Act, 1925. In such eases neither party is entitled as of right to exclude the other and thus deprive him or her of his or her share. The only thing to do, if they cannot agree, is to apply to the Court for an order for sale with vacant possession, and, in aid thereof, an order for one or other to go, see Bull v. Bull 1965 1 Q. B. 234. Such an order was refused in Cobb v. Cobb 1955 1 W. L. R. 731, but granted in Rawlings v. Rawlings, 1964 P. 398.
Upon what principles should the Court act in ordering a sale? In a straight case of desertion by the husband - as, for instance, where he leaves the home to go and live with another woman - the Court will not usually order the wife to go out. It is his duty to provide her with a roof over her head. No matter in whose name the house stands - in the husband's name or in them both Jointly - the Court, will not in the ordinary way order her out unless he provides her with suitable alternative accommodation, see Halden v. Halden. 1966 1 W. L. R. 1483, where the house was in the husband's name alone: and the recent case before Mr. Justice Stamp of the ( Hardy's Trust Southerst v. Southerst Times 22nd October 1970), when the house was in Joint names. But when it is the wife who deserts the husband - when it is she who leaves the house - it is rather different. The Courts have not laid down a similar principle in favour of the deserted husband. It is not a wife's duty to provide a roof over the husband's head. But the Courts have given the husband considerable protection. If he is in occupation, they do not order a sale or turn him out - at the behest of a deserted wife - unless it is Just and equitable so to do. In Bedson v. Benson, 1965 2 Q. B. 666, this Court refused a sale: though in Jones v. Challenger, 1961 1 Q. B. 176, and Rawlings v. Rawlings, 1964 P. 358, this Court, by a majority, did allow it.
In truth, all these oases depend on the discretion of the Court. The eases about desertion are only instances of the way in which the conduct of the parties will influence the exercise of discretion. This discretion is now confirmed and made statutory by section 1(3) of the Patrimonial Homes Act 1967 as amended by section 38 of the Matrimonial Proceedings and Property Act 1970. That shows that in all these oases whenhusband or wife has an equitable interest in a...
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