Jansen v Jansen

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE DAVIES,LORD JUSTICE RUSSELL
Judgment Date15 Jul 1965
Judgment citation (vLex)[1965] EWCA Civ J0715-3

[1965] EWCA Civ J0715-3

In The Supreme Court of Judicature

Court of Appeal

From Mr Registrar Forbes

Before:

The Master of the Rolls

(Lord Denning)

Lord Justice Davies and

Lord Justice Russell

Janet Isabel Jansen
Applicant Respondent
and
Max Ernest Rudolph Jansen
Respondent Appellant

MR MICHAEL SHERRARD (instructed by Messrs Kleinman, Klarfeld & Co.) appeared as Counsel for the Appellant.

MR HRUCE CAMPBELL, Q. C. and Miss BLAINE JONES (instructed by Mr Alexander Kassman) appeared as Counsel for the Respondent.

THE MASTER OF THE ROLLS
1

Mr and Mrs Jansen were married on 15th April, 1957. He was a student aged 31. She was a psychiatric social worker aged 38. She had been previously married and had two young children by her first marriage. She had a leasehold house of her own where they lived at first. He had a leasehold house which he let out at rents amounting to about £7 or £8 a week.

2

After the marriage the wife sold her leasehold house and bought a much larger one at 23 Langland Gardens, N. W.3, with four floors capable of conversion into flats. It cost about £4, 000. They went to live in it. The wife earned money by going out to her work as a psychiatric social worker. The husband earned nothing himself but he did a great deal of work in the house. He bought many tools and became a most skilful workman in all trades. Between 1957 and 1959 he converted the top two floors into flats, all by himself, save that an outside staircase was made by a contractor. He paid for some of the materials needed for the work: but a good deal came out of money his wife raised on mortgage. These conversions were most profitable. In the summer of 1959 the wife realised the top two flats for some £6, 000 which gave her a very considerable profit. With the proceeds she was able to acquire the freehold of the premises, pay off a mortgage on it, and still have some £3, 000 in hand. The couple then decided to convert the ground floor into a flat and realise it: and to convert the basement into their own living quarters. In 1960 they had a daughter born to them. The husband went on with the work of conversion. In 1962, however, the parties were at loggerheads. In August, 1963, before the work was completed, the wife left the house with the children and went to live elsewhere. The husband stayed on in the basement getting on with the work. in May 1964 the ground floor flat was realised for some £7, 000. The basement has not yet been realised, but it is expected to fetch about £7, 500. The wife has brought a petition for divorce on the ground of cruelty. The husband has put in ananswer denying the charge and charging her with cruelty. The divorce suit has not yet come on for hearing. Meanwhile the wife has made an application under Section 17 of the 1882 Act asking that the house be declared to be here and that her husband has no interest in it.

3

It is quite plain on the evidence that the husband and wife engaged in a joint enterprise whereby he did the work of converting the property into flats, and these were sold off at a profit. But they never formed any definite decision as to what was to be done with the profits. The Registrar said that he was quite satisfied "that the parties were in agreement so far as the project to convert the property into flats was concerned, but it is by no means clear that they formed any definite intention, at the time when the decision to convert was taken, as to what should be done with any net profits arising from a sale". But the wife recognised that the husband ought to be recompensed for the work he had done on her property. At one time she altered her will so as to make a bequest to him of 63, 000. In 1963 she actually instructed her solicitor to draw up an agreement "in acknowledgment of the work and time he has expended in converting the property and is expecting to expend in the future". By this proposed agreement she was to pay him the amount she realised on the ground floor flat. But it was not executed, as the husband refused to sign it.

4

The Registrar found that "it would be equitable to hold that he did acquire some interest as a result of the services he rendered and, in a much lesser degree, from the small contributions he made out of his income of about £7 to £8 a week towards materials…, it would be just and equitable to determine the husband's interest as being represented by a proportion of the sums received, and I would assess the amount at £1, 000".

5

The husband appeals to this Court saying that his interest should be assessed at £7, 000 and not £1, 000. The wife cross appeals saying that her husband had no interest in it at all.

6

In the recent case of Appleton v. Applet on. 1965, 1 Weekly Law Reports, p. 25, this Court held, in the special circumstances of that case, that it was fair that, when a husband did work on a house which belonged to his wife, he should get so much of the enhanced value as was due to his work and materials that be supplied. If that case stands, it is authority for the decision of the Registrar here. But in the recent case of National Provincial Bank v. Hastings Car Mart. 1965, 3 Weekly Law Reports at p. 24. Lord Upjohn said he did not regard Appleton v. Appleton as correctly decided. He said that the husband could have no claim in the absence of some agreement. None of the other Law Lords said anything on the point. I hardly think that Lord Upjohn meant that a contractual agreement is necessary in. order to give the husband an interest. For that is never forthcoming in any of these cases. Whilst parties are living together in amity, they do not make legal contracts enforceable in a court of law. "Agreements such as these are outside the realm of contracts altogether. The common law does not regulate the form of agreement between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection which counts for so little in these cold courts", see Balfour v. Balfour. 1919 2 King's Bench at p. 579 by Lord Justice Atkin. I do not think it necessary, therefore, to look for a contract in order to determine the rights of husband and wife. In cases where it is not clear what are their existing rights, you can only look to see what is fair and just between them. In the words of Lord Upjohn himself, their rights are often so "legally incapable of solution, that an equitable knife must be used to cut the Gordian knot".

7

It has been said that Section 17 is a procedural section which confers no jurisdiction which did not previously exist. But I would point out that before 1682 husband and wife were one person inlaw: and neither could sue the other. Neither had any rights of property at law vis-a-vis the other. In Phillips v. Barnet (1876) 1 Queen's Bench Division at p. 440 Mr Justice Lush said: "It may be safely laid down, I think, that neither can acquire any civil rights against the other, nor apply to a civil court to enforce them. For her personal protection the wife may exhibit articles of the peace against the husband, but, in my opinion, her remedy does not extend to the bringing of an action against her husband". It isplain, therefore, that Section 17 is not merely procedural. It gives rights where none before existed: and gives a remedy where before there was none. There the existing rights can clearly be ascertained, effect must be given to them. But where it is not possible to ascertain them, the Court can only do what the statute says it should do, that is, make such order "as it thinks fit".

8

In the present case it is quite plain that there was a joint enterprise akin to a partnership. The wife supplied the capital in the shape of the house. The husband supplied t&e labour. By means of their joint efforts a profit was made. If these two were not husband and wife, the law would readily infer a provision that he should have some part of the profit. So should equity say today, seeing that the marriage has broken up. Their rights have not been determined by agreement. So the Court has to do it according to what is fair and just in all the circumstances.

9

The husband has done a lot of work on the property which has enabled the wife to make large profits. But it must be remembered that he bag not had to provide a roof for his wife and child, nor to pay the housekeeping expenses. She has done most of that out of her earnings or out of lettings of her house. He cannot expect to receive a half share of the profit or anything like it. He should give credit for the amount which he would have probably contributed to the household if he had gone out to work. Making all allowances, I think that the Registrar's figure of think it so wrong that this Court should disturb it. I would therefore dismiss thisappeal and also the cross appeal.

10

A question was raised at one time about a sum of £670 which stood in the joint account. This was not pressed in argument; and, agreeing as I do with what Lord Justice Russell will say about it, I say nothing on it.

LORD JUSTICE DAVIES
11

I agree. It seems to me that this case is not nearly as difficult as some of the others which come before the Court under Section 17 of the Married Women's Property Act. For the present case appears to me to be a question of fact only. As I read the judgment of the learned Registrar, he accepted the contention of the husband that there was an agreement between the parties that they should engage in a joint commercial enterprise for the conversion of the house into separate flats and that the husband, in return for the substantial amount of work to be done by him to that end, should share in any profits which might accrue. He found, however, that there was no precise agreement as to the proportions in which such profits should be shared or as to what the extent of the husband's interest should be. In my judgment, there was abundant evidence...

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22 cases
  • Button v Button
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 30 Enero 1968
    ...W.L.R. p. 25, the husband did work on his wife's house. He was a skilled craftsman who did work of an exceptional nature altogether. In Jansen v. Jansen 1965 P., p. 478, the husband converted his wife's house into flats. In both these cases the work done by the husband was of a type which ......
  • Smith v Baker
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 29 Abril 1970
    ...of both; it was joint property, although in the name of the husband only. 10 I would only add that the wife's work here falls within Jansen v. Jansen, 1965. P. 478, which, in my judgment, is still good law. It was said to be correct in Pettitt v. Pettitt by both Lord Reid and Lord Diplock.......
  • Gissing v Gissing
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 1 Abril 1969
    ...on mortgage in the husband's name or in joint names…". Nor is it like such cases as Appleton v. Appleton (1965 1 W.L.R. 25) and Jansen v. Jansen (1965 P. 478), where one spouse did work to the matrimonial home of a substantial type such as a contractor would normally be employed to d......
  • Pettitt v Pettitt
    • United Kingdom
    • House of Lords
    • 23 Abril 1969
    ...which a wife does for the benefit of the family without altering the title to or interests in the property." I agree with him that Jansen's case [1965] p. 478 was rightly decided. I have more doubt about Appleton's case [1965] 1 All E.R. 44: the facts are not very fully stated and it......
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