Knibb v Knibb
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FOX,MR JUSTICE SHELDON |
| Judgment Date | 26 February 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0226-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0162 |
| Date | 26 February 1987 |
[1987] EWCA Civ J0226-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
SOUTHEND COUNTY COURT (HIS HONOUR JUDGE RICE)
Royal Courts of Justice,
Lord Justice Fox
Mr Justice Sheldon
87/0162
No. 84D. 704
MR B. SILVESTER (instructed by Messrs. Harvey Collins, Solicitors, Wickford, Essex) appeared on behalf of the Appellant.
MR N. COOKSLEY (instructed by Messrs. Mitchell, Maudsley & Wright, Solicitors, Basildon, Essex) appeared on behalf of the Respondent.
)
I will ask Mr Justice Sheldon to give the first judgment.
This is an appeal by Mr John Knibb from an order of 15th October 1986 of His Honour Judge Rice, sitting at the Southend County Court, extending by some seven days the time available to his ex-wife, Mrs Iris Margaret Knibb, to exercise an option to redeem for £3,500 a charge which had been placed on the former matrimonial home.
The property was originally in the parties' joint names. It was common ground that, following the break down of the marriage, Mrs Knibb should continue to live there with her children, and indeed that upon suitable terms, the sole title to the property should be vested in her. Such a vesting order was made on 5th August 1985.
On the same day and reciting that fact, and upon undertakings being given by Mrs Knibb to obtain her husband's release from the then existing mortgage, and to indemnify him against any further liability under it, a further order was made by Mr Registrar Simons, containing the following terms:
"(1) that the Petitioner" (Mrs Knibb) "do within 14 days of being so required execute a charge in favour of the Respondent to secure to him 40 per cent. of the net value of the property as hereinafter defined";
"(2) that the charge shall provide (i) that the statutory power of sale there under shall be deemed to arise on the happening of the first of the following events
(a) the Petitioner's death; (b) the Petitioner's remarriage; (c) the Petitioner's cohabitation with a man for a period of three months; (d) the Petitioner's voluntary removal from the property, and
"(ii) that the charge may be redeemed within four months of 5th August 1985 by the payment by the Petitioner to the Respondent of the sum of £3,500"
"(3) that the Petitioner's claim for all types of ancillary relief are upon the making of the said vesting order dismissed"—with a further prohibition on any further claims.
This order contained terms which were not to Mr Knibb's liking; and he duly appealed against it to Judge Rice. On 10th January 1986, however, that appeal was dismissed.
It is also common ground—although such a provision does not appear on the face of the order dismissing the appeal—that the learned Judge amended the period, during which Mrs Knibb was to be able to exercise her option, to four months from 10th January 1986. As the Judge said: "…an obvious direction because the four months had elapsed and the Petitioner had been prevented from exercising her option by the Respondent's appeal". It was also an amendment that clearly he was entitled to make on the hearing of that appeal.
Mrs Knibb thus had until 10th May 1986 to redeem the charge in question. She failed, however, to do so; and on 30th June 1986 she applied to Mr Registrar Bodiam for an extension of time in which to take the necessary steps.
That application was heard on 22nd July 1986, when it was dismissed by the Registrar, not only for want of jurisdiction, but also on the merits.
It thus became Mrs Knibb's turn to appeal—as she did to Judge Rice who, on 15th October 1986 (satisfied that he had...
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...asserts that the wife has lost all her rights. 17 The registrar and the judge relied on the decision of this court in Knibb v. Knibb [1987] 2 F.L.R. 396 in reaching their decision in this case. The basic facts of that case were similar to those of the present case. The matrimonial home was ......
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...between the substantive parts of the property adjustment order and the time for performance. 18 The second decision was Knibb v Knibb [1987] 2 FLR 396, in which the wife was given an option to redeem a charge on the former matrimonial home in favour of the husband. She was unable to do so w......
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