Jones (M.A.) v Jones (W.)

JurisdictionEngland & Wales
JudgeLORD JUSTICE MEGAW,LORD JUSTICE ORR,MR. JUSTICE LATEY
Judgment Date17 December 1974
Judgment citation (vLex)[1974] EWCA Civ J1217-5
CourtCourt of Appeal (Civil Division)
Date17 December 1974
Between
Myrtle Agatha Jones
Petitioner
and
Webster Jones
Respondent

[1974] EWCA Civ J1217-5

Before:

Lord Justice Megaw

Lord Justice Orr and

Mr. Justice Latey

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

(From: His Honour Deputy Judge Rawlins - Gloucester County Court)

Mr. BRENDAN SHINER (instructed by Messrs. Gregory Rowcliffe & Co., Agents for Messrs. Scott & Fowler, Gloucester) appeared on behalf of the Appellant (Wife, Petitioner).

Mr. ROBIN BARRATT (instructed by Messrs. Treasures, Gloucester) appeared on behalf of the Respondent (Husband, Respondent).

LORD JUSTICE MEGAW
1

I shall ask Lord Justice Orr to deliver the first judgment.

LORD JUSTICE ORR
2

This is an appeal by a former wife (I shall for convenience refer to the parties as the wife and the husband) against an order of His Honour Deputy Judge Rawlins made in the Gloucester County Court on the 26th June of this year, by which he ordered that the husband should transfer to the wife his interest in the former matrimonial home on the terms that the wife should pay to the husband one-fifth of the equity in that house on her death or on sale of the house or on the youngest of the children of the family ceasing to be dependent on the husband; the wife's contention in the appeal being that the judge ought to have ordered the transfer to her unconditionally of the whole beneficial ownership of the house.

3

The parties were married on the 22nd February, 1958, the husband then being 38 and the wife 28, and both being Jamaicans who had immigrated into this country. There are five children of the marriage, three girls and two boys, of ages 16 to 10. The house in question is 20 Hatfield Road, Gloucester, and it was the matrimonial home from 1966. On the 6th November, 1972, the wife obtained a decree nisi on the ground of irretrievable breakdown of the marriage by reason of the husband's unreasonable behaviour, and she was granted custody of the children, subject to a supervision order which was made because the husband was then still living in the matrimonial home. In March, 1972, the wife applied for an injunction restraining him from molesting her or the children and from his remaining in the matrimonial home. On that application no order was made, on undertakings by the husband to leave the house (which he did) and not to molest his wife or children. The wife also made application for periodical payments for herself and the children and, following affidavits by the parties which deposed that the wife was thenearning some £15 a week as a part-time nurse and the husband was earning some £24 a week as a carpenter, the deputy registrar ordered payments of 5p a year by the husband to the wife and £1 a week for each of the children of the marriage.

4

On the 2nd June, 1973 (the decree having in the meantime been made absolute) the husband came to the Jamaica Club in Gloucester, where the wife and the children had been attending a wedding reception, and when the wife left with the children and was walking down an alley he attacked her, either with a knife or with an open cutthroat razor, inflicting upon her a number of wounds one of which severed the tendons of her right hand. In respect of that matter he pleaded guilty at the Bristol Crown Court to grievous bodily harm with intent, and was sentenced to three years' imprisonment. His estimated date of release from that imprisonment is in June of next year.

5

In the meantime, in July, 1973, the wife had sworn an affidavit in respect of her application for periodic payments, and she had also sworn an affidavit in respect of an application for a transfer of property order under section 25 of the Matrimonial Causes Act, 1973. She deposed that when the matrimonial home was bought in 1966 it was conveyed into the joint names of herself and her husband; that she was a joint mortgagor with her husband; that earnings of hers as a nurse had been used for housekeeping purposes; that she had on two occasions paid off arrears of £80 and £295; and that she had paid all the mortgage instalments over the year preceding that affidavit.

6

On the 5th November the husband made application under section 17 of the Married Women's Property Act, 1882, for an order that the equity in the house belonged as to two-thirds to him and as to one- third to his wife, and that the house be sold. He supported that application by an affidavit in which he deposed that in January, 1961, he had bought in his own name a house, 10 Twyver Street,Gloucester, for £800, paying a deposit of £160 and obtaining a mortgage for the balance of £700; that in September, 1966, he sold that house for £1,100 and that 20 Hatfield Road was then bought, in his own and his wife's joint names, for £2,750, of which he provided £450 from the proceeds of sale of the previous house, the balance being obtained on mortgage from a building society. The repayments amounted to £18.30 a month, and the husband deposed in his affidavit that he gave to his wife housekeeping money which covered both those mortgage instalments and the rates. He admitted that both the mortgage instalments and the rates had fallen into arrears, but he claimed that that was not his fault, he having given the necessary money to his wife. He admitted, however, that she had paid all the mortgage instalments since he left the matrimonial home. He appended to that affidavit a valuation of the house dated May, 1973, in the sum of £6,750, and he also appended a letter written by his wife to the Crown Court at the time when the husband was on trial in which she spoke of his having been a good father and in many respects a good husband and said that she bore him no grudge.

7

The wife in answer to that affidavit deposed that she had had very little in the way of housekeeping money from the husband. She admitted writing the letter to the Crown Court but said that she would never be able to forgive her husband for the attack that he had made upon her.

8

On that material, it was argued at the hearing on behalf of the husband that he should be held entitled to one-third of the equity in the matrimonial home; and on behalf of the wife that the whole of the equity should be transferred to her. The learned judge found as a fact that as a result of the husband's attack the wife would be unable to work as a nurse and that her future prospects of obtaining employment at all were very doubtful. Those findings were fully justified by the medical report which we have seen, which statesthat there is a 75 per cent, disability of the hand and that there is unlikely to be any further recovery in that respect. The judge was also satisfied that there was no likelihood of the wife remarrying. By contrast, he took the view that the husband would, on his release from prison while still in the middle 50s, be able to resume work as a carpenter. He had deposed in one of his affidavits that in 1969/1970 he was able to earn up to £30 a week with the help of overtime. The judge accepted, however, that the wife ought to receive compensation for her...

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