Lucas v Lucas
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WOOLF,LORD JUSTICE STAUGHTON |
| Judgment Date | 24 April 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0424-8 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0534 |
| Date | 24 April 1991 |
[1991] EWCA Civ J0424-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE STAFFORD COUNTY COURT
(MR. RECORDER CAVELL)
Royal Courts of Justice.
Lord Justice Mustill
Lord Justice Woolf
Lord Justice Staughton
91/0534
MR. A. WHEELER (instructed by Messrs. Keely Smith of Lichfield) appeared on behalf of the (Petitioner) Respondent.
MISS J. MULLEN (instructed by Messrs. Moseley Chapman & Skemp) appeared on behalf of the (Respondent) Appellant.
LORD JUSTICE BALCOMBE: This is an appeal from an order made on 25th September 1990 by Mr. Recorder Cavell in the Stafford County Court whereby on the application of an ex-wife in the course of matrimonial proceedings it was ordered that the ex-husband should vacate the property which had been the matrimonial home. The primary ground of the appeal is that the judge had no jurisdiction to make such an order after decree absolute.
The parties were married on 6th November 1969. There are two children of the family, a boy who was already 20 years of age at the date of the hearing at first instance and a girl, Tammie, who was born on 1st November 1973 and so was then aged 16. From 1976 onwards No. 24 Ponesfield Road, Lichfield ("the property") was the matrimonial home. The property, which has three bedrooms, is rented from the Lichfield District Council and the tenancy is and always has been in the sole name of the wife.
From 1985 onwards the parties started living in separate households within the property, and on 6th June 1989 the wife presented a petition for divorce in the Stafford County Court. The facts relied on by the wife to establish the irretrievable breakdown of the marriage were two years' separation as defined in section 1(2)(d) of the Matrimonial Causes Act 1973, and that the husband consented to a decree being granted. The wife's petition contained the usual claims for financial ancillary relief.
By his acknowledgment of service dated 11th September 1979 the husband stated that he consented to a decree being granted; he also stated that he intended to apply to the court for it to consider his financial position as it would be after the divorce. The petition went ahead undefended, and a decree nisi was granted on 4th January 1990. On the same day an order was made giving joint custody of the child, Tammie, to the parties, with care and control to the husband. The decree was made absolute on 13th March 1990.
On 10th May 1990 the wife issued an application in the divorce proceedings in the Stafford County Court for an injunction to exclude the husband from the property. In an affidavit dated 4th May 1990, sworn in support of that application, the wife alleged that she resided at the property with the two children of the family. She further alleged that as from January 1989 the husband commenced residing at 52 Simpson Road, Lichfield, although he continued to keep some clothing in a locked bedroom at the property. She then said that the husband returned to the property only occasionally, using it as no more than "a guest home" for the purpose of changing his clothes or occasionally cooking a meal or having a wash. Paragraph 8 of this affidavit is in the following terms:
"I ask that the Respondent be excluded from the matrimonial home on the basis that he has been aggressive towards me in the past and the position with regard to the property should be resolved once and for all now that Decree Absolute has been pronounced.
An Example of the Respondent's aggression towards me occurred in October, 1989, when an incident occurred because I was taking the Respondent's clothes out of a tumble dryer and he did not want me to. An argument started and in fact the Respondent twisted my nose and ears but did not mark me.
The Respondent told me that he was not going to mark me and he knew how far he could go. The incident did escalate and the local police were called. I do not know what was said but an officer did speak to the respondent.
Additionally, the Respondent taunts me when he visits the property which creates mental pressure towards me. Whenever the respondent mentions me to the children he always refers to me as 'the bag'."
Then, after give details of her income and outgoings, the wife said that she was unable to support a mortgage on her income and in any event wished to continue residing at the property. She further asserted that the husband's income was sufficient to enable him to maintain a mortgage in his own right on an alternative property.
The husband eventually put in an affidavit in answer on 10th August 1990. The affidavit, which is in manuscript, was clearly made without professional assistance, even though there were at the time solicitors on the record for the husband. By this affidavit the husband gave the property as his address. He asserted that the wife had "a severe drinking problem" and made certain allegations of violence against her. The affidavit contained the following passages:
"Since we have been divorced Mrs. Lucas has been living with a friend of mine in his house at Christchurch Lane, Lichfield. She comes back occasional to see her son and daughter…
I would like to apply for an injunction to keep Mrs. Lucas out of my house, so I can decorate the premises knowing that she won't damage the property."
To this affidavit the wife put in a further affidavit in reply on 13th September 1990. She denied having a drinking problem or that she had attacked the husband. Paragraph 5 is in the following terms:
"With regard to my association with a so called friend of Mr. Lucas, I would comment that this gentleman is a Mr. Gary Harrison who lives at Christchurch Lane, Lichfield. I admit that I have stayed over at Mr. Harrison's flat most evenings following the pronouncement of the decree absolute. The reason for this, since the divorce, Mr. Lucas has indicated that he would 'get' the council house off me. I have been subjected to [constant] abuse and threats of violence whilst at the matrimonial home, and as stated in my previous Affidavit am referred to as 'the bag'. I have decided that until I obtain an injunction, it is easier to stay away from the matrimonial home as I am frightened of Mr. Lucas and would wish to avert violence."
It was in this state of the paper evidence that the matter came before Mr. Recorder Cavell on 25th September 1990. By this time the solicitors previously acting for the husband had come off the record and, although an emergency legal aid certificate had been granted authorising other solicitors to represent the husband on the wife's application for the ouster injunction, we were told that by some misfortune the husband was not represented at that hearing and appeared in person. We were also told that oral evidence was given at the hearing, but we have no note of that evidence. I should also mention that at the date of the hearing the wife had taken no step to pursue her claim for financial relief as made in the petition; nor, save for his reference to "my house" in his affidavit of 10th August, had the husband asserted any claim to the property. He has now made such a claim by notice dated 19th December 1990.
Because the husband was not represented at the hearing, the point as to jurisdiction was not taken before the judge. Nevertheless, the fact that the point was not taken would not be sufficient to preclude this court from setting aside an order made without jurisdiction.
It was common ground before us that, since the parties were no longer husband and wife at the date of the hearing, there was no jurisdiction to grant the injunction under the Matrimonial Homes Act 1983. It was also common ground that, since the parties were neither husband and wife nor living with each other in the same household as husband and wife, there was no jurisdiction to grant the injunction under the Domestic Violence and Matrimonial Proceedings Act 1976. Prima facie, therefore, the County Court only had jurisdiction to grant the ouster injunction if it was ancillary to a claim within the substantive jurisdiction of the court—see section 38 of the County Courts Act 1984; Kenny v. Preen [1963] 1 Q.B. 499. However, since the injunction related to the occupation of land, the County Court had the same jurisdiction as the High Court to grant an injunction, provided the net annual value for rating of the property did not exceed the County Court limit—see section 22 of the 1984 Act. The County Court limit was £1,000. The rent card for the property, which was exhibited to the wife's affidavit of 13th September 1990, shows that the property had a gross annual value of £231, so that it was well within the County Court limit. Accordingly, provided that the High Court could in similar circumstances have granted the injunction claimed by the wife, the County Court had the like jurisdiction.
The power of the High Court to grant an injunction is contained in section 37(1) of the Supreme Court Act 1981:
"The High Court may by order (whether interlocutory or final) grant an injunction…in all cases in which it appears to the court to be just and convenient to do so."
Despite the apparently wide words of the subsection, it has been established that the court only has jurisdiction to grant injunctions for the purpose of protecting legal or equitable rights—see Richards v. Richards [1984] A.C. 174, 218. By virtue of her sole tenancy the wife had an undoubted legal right to possession of the property. Any right to occupy the property which the husband had under section 1 of the Matrimonial Homes Act 1983 ceased upon decree absolute, and there is nothing in the...
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