Martin v Martin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP,LORD JUSTICE ORMROD,SIR JOHN PENNYCUICK |
| Judgment Date | 10 March 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0310-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 March 1977 |
[1977] EWCA Civ J0310-1
Lord Justice Stamp
Lord Justice Ormrod and
Sir John Pennycuick
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Petitioner husband from Order of Mr. Justice Purchas, London, November 26, 1976.)
MR. F. AGLIONBY (instructed by Messrs. Martin, Tolhurst, Allen & Hiscock) appeared on behalf of the Appellant (Husband).
MR. HICHOLAS WALL (instructed by Messrs. Crossman, Block & Keith) appeared on behalf of the Respondent (Wife).
We need not trouble you, Mr. Wall. This is an appeal from an order of Mr. Justice Purchas made on the 26th November last whereby he reversed an order made by Mr. Registrar Tickle in relation to the former matrimonial home of the parties to the suit. The learned registrar had order a sale of the matrimonial home and a division of the not proceeds between the parties in equal shares on the footing that the husband should discharge the rather small mortgage debt which was charged on the property. The learned judge reversed that order, deciding that the matrimonial home should be held in effect upon trust for the wife during her life or until her remarriage or such earlier date as she should cases to live there. The matrimonial home is at 27, Plane Avenue, Northfleet.
The history of the matter, put shortly, is this. The parties were married in 1957 and there were two children of the marriage. The husband is now 43 and the wife 46. On the 27th September, 1972, the husband left the matrimonial home to live with the party cited. The divorce proceedings were begun, I think, originally by the husband, but in fact on the 4th October, 1974, I think on the wife's cross-application in her answer, a decree nisi was granted on the basis of the husband's adultery, and that decree was made absolute on the 19th November, 1974.
The value of the house was agreed to be about £11,000. It had been purchased in the husband's name at approximately the time of the marriage in 1957 for £1,800, of which £1,300 had been raised on mortgage. When the matter came before the judge the amount outstanding on mortgage was £661, plus £229 arrears of interest. The judge treated the equity as of a value of approximately £10,000.Neither party bad any capital assets of any significant value except such Interest as they bad in the matrimonial home. Both parties are employed, the husband earning about £23 a week net and the wife about £85 a week not.
The husband la living with the party cited in a three-bedroom council house. He intends to marry her, and he saw no difficulty in obtaining a transfer of the tenancy of this house to him and the party cited, who has two children of a former marriage aged 12 and 9, and recently gave birth to a child of whom the former husband is the father. So - and this is one of the important features of this case - the father has a secure roof over his head. The parties' solicitors accepted that the equity in the house belonged to them in equity in equal shares. The registrar found, if such a finding was necessary, that the wife's share of the equity of a sale would not enable her to purchase alternative accommodation.
It is of primary concern in these cases that on the breakdown of the marriage the parties should, if possible, each have a roof over his or her head. That is perhaps the most important circumstance to be taken into account in applying Section 25 of the Matrimonial Causes Act 1973 when the only available asset is the matrimonial home. It is equally important that each party should have a roof over his or her head whether or not there be children of the marriage.
The judge in the instant case, in my judgment, approached the matter correctly. After a careful review of a number of authorities he turned to consider and apply the provisions of Section 25 of the Matrimonial Causes Act 1925. In relation to Section 25 (1) (a), the income and earning capacity of each of the parties in the instantcase disclosed that each had a reasonable earning capacity, sad that the wife's earnings were such that the registrar made only a nominal order for periodical payments in her favour. I would interrupt the recital of the judge's judgment by remarking that if the wife is allowed to remain in occupation of the matrimonial home the risk that the Husband will ever be ordered to make periodical payments to her is, as I see it, negligible. In the absence of the unlikely event of a dramatic improvement in his fortunes he will as a practical matter be relieved by the effect of the judge's order of the risk of having to make periodical payments to the wife in the future, for she will have a roof over her head for as long as she requires it and will be under no liability to pay rent.
The learned judge continued by referring to Section 25 (1) (b) of the Act, relating to the financial needs, obligations and responsibilities which each of the parties to the marriage had or was likely to have in the foreseeable future. He pointed out that there was no evidence that the husband had any immediate need for a capital sum in order to support his present way of life, and that he had a secure roof over his head. He went on to say a little later in the judgment that the wife, on the other hand, needed either the matrimonial home in which she was presently living or some alternative accommodation. He pointed out that the learned registrar had found that "even with the sale of the matrimonial home the net equity available to the wife would not enable her to purchase alternative accommodation." He went on to say this: "The wife had applied to the council for a council house; the finding of the learned Registrar in this respect is at paragraph 8: 'There is, of course, no guarantee that she will succeed in her application to thelocal authority but she will have £5,000 to invest and the interest would enable her to pay a reasonable rent.' The parties have agreed to accept the findings of the learned Registrar otherwise I would have some reservation about this proposition as a secure alternative to the wife's remaining in the matrimonial home."
Mr. Aglionby, on behalf of the husband, submitted that there was a good opportunity of the wife claiming the council accommodation but there is no evidence whatsoever that she has, or is indeed likely to obtain, such accommodation. Apart, however, from that, I would require a good deal of convincing that it would not be contrary to public policy to make an order for sale of the matrimonial home so as to put £5,000 into the pocket of the husband, and, incidentally, approximately the same amount into the wife's pocket, in the belief that the wife would be rehoused in council accommodation. Quite an important question of public policy is, I think, there involved, and the decision of Mr. Justice Browne in Brent -v- Brent (1975 Fam. Div.) does not assist Mr. Aglionby, nor does the decision of this court in Thompson -v- Thompson (1976 Fam. Div. p.25), which was concerned with quite a different question.
The Judge went on to consider the effect of Section 85 (1) (c) of the Act, pointing out that it was "relevant to have regard to the fact that the family before the breakdown of the marriage lived in modest, comfortable circumstances in their own house upon which a reasonably small mortgage was being paid off." In this connection I would emphasise that the parties had the marriage continued would almost certainly, as the judge pointed out, have remained in the house and would not...
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