NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1953.tb02121.x |
| Published date | 01 April 1953 |
| Date | 01 April 1953 |
NOTES
OF
CASES
MATRIMONIAL
HOME-RECENT
Cast8
THE
evolution of the right to occupy the matrimonial home, accorded
to
the spouse who is not the owner or legal tenant of the premises,
has been very fully discussed from the point of view of property
law, especially by
Mr.
George (“Disputes over the Matrimonial
Borne”
(1952) 16
Conveyancer
27),
by
Mr.
H.
W. R. Wade
(“Licences and Third Parties”
(1952) 68
L.Q.R.
887),
by
Mr.
Mege
(“
The Deserted Wife’s Right
to
Occupy the Matrimonial
Home”
(1952)
68
L.Q.R.
879),
and by
Dr.
Cheshire
(“A
New
Equitable Interest in Land
”
(1958) 16
M.L.R.
1).
The purpose of
this
Note is
to
survey some recent cases, and
to
do
so
chiefly from
the
point
of
view of matrimonial law.
The problem is usually put in terms of the rights of a deserted
wife
to
occupy the house owned or rented by her husband, but the
question might just as well arise in the reverse situation,
Le.,
where
the wife was the owner or tenant and had deserted the husband.
Doubts concerning the answer derive, inter alia, from certain obser-
vations
of
Denning L.J.
in
Bendall
v.
McWhirter
119523 2
Q.B.
466;
119521
1
All E.R.
1807,
who at p.
1811
linked the deserted wife’s
right
to
occupy the matrimonial home with her common law authority
to
pledge her husband’s credit. The principal argument, however,
on
which the right to occupy the matrimonial home rests is that the
deserted wife is in enjoyment
of
an irrevocable contractual licence
and this argument would also meet the reverse situation, in spite
of the fact that section
12
of
the Married Women’s Property Act,
1882,
applies unequally between the spouses. Moreover, doubts
may
be
expressed as to whether the rationale of the decisions about
to
be discussed
is
restricted to cases of desertion,
i.e.,
to
cases in
which there has been misconduct
on
the part of the spouse legally
entitled to the premises and whether
it
should not also apply
to
cases of factual or judicial separation. This question, however,
must
be
left open for the moment, and the following observations
will be confined to the actual situation which has now been before
the courts
so
frequently, that
of
the right of a deserted wife to
remain in occupation of the matrimonial home.
The dedrted wife’s right against her husband must of course
be
clearly distinguished from her rights against third parties. The
problem
of
the rights of husband and wife
inkr
se
has
been
raised
anew in the recent cases of
Murcutt
v.
Murcutt
119523
P.
266;
119521
B
All E.R.
427
and of
Vaughan
v.
Vaughan
[l958]
1
All
E.R.
209.
In
Murcutt
v.
Murcutt
husband and wife lived in the matrimonial
home, of which the husband was the tenant. Their two grown-up
215
216
THE
MODERN
LAW
REVIEW
VOL.
16
daughters, one of whom was an invalid, were residing with them.
The wife had petitioned for divorce by reason of the husband’s
cruelty. He instituted proceedings in the county court in order to
evict the wife and the two daughters. Subsequently he withdrew
the application against the wife and undertook not to evict her.
The wife alleged that the application against the daughters was
really aimed at her because if the daughtszs, and especially
if
the
invalid daughter went, she would be compelled to go as well, the
invalid being dependent on her help. She therefore sought to
obtain an injunction against her husband restraining him from
proceeding with the application against the daughters. Willmer
J.,
in
the Probate, Divorce and Admiralty Division, held that he had
jurisdiction to grant the injunction, but refused to make
it,
inter
alia, on the ground that the wife was not legally under any obliga-
tion to follow the daughters and that if such an order was made
there could be no visible limit to the possibility of protecting the
occupation of third parties of whom the wife was fond and who
might be dependent on her. En
so
far as any general conclusions
can be drawn from this decision, they would appear to be that the
rights of the wife against the husband with regard to the matri-
monial home cannot possibly enure for the benefit of third persons,
except, one must assume, infant children.
The point in
Vaughan
v.
Yaughan
was simple, and, one would
have thought, obvious: the wife’s right
to
occupy the matrimonial
home
is
a
jus
~naritde,
i.e.,
based on the fact that she is the o~ner’~
or
the tenant’s wife. Hence her right terminates with termination
of the marriage,
e.g.,
by divorce. After divorce the husband may
revoke the licence except where he has by contract bound himself
not to do
so.
In the instant case he deserted his wife in
1948
and
told her she could
“
always
”
live in the matrimonial home. She
divorced him in
1950,
and when, in
1952,
he revoked the licence,
she argued that
“
always
”
meant for the duration of her life.
However, the Court
of
Appeal (Evershed M.R., Denning and
Romer L.JJ.) unanimously held that the husband’s remark could
not possibly be construed as disclosing a contractual intention, quite
apart from the question of consideration which was expressly left
open. Denning L.J. pointed out that if
a
contractual licence had been
established
it
would have been
n
post-nuptial settlement capable
of being varied under section
25
of the Matrimonial Causes Act,
19.50.
Romer L.J. reached the conclusion that a wife in enjoyment
of an irrevocable licence for life (if it was in writing) would have the
powers of a tenant for life within the meaning of the Settled Land
Act and could sell the premises. He did not consider the question
whether, by section
20
(1)
(vi) of the Settled Land Act,
1925,
the
wife does not have these powers even
if
her right is liable to cease
on the termination of the marriage.
That the deserted wife’s right to occupy the matrimonial home
may be available against a third party was, as will
be
remembered,
APRIL
1963
NOTES
OF
CASES
a17
at
first established in cases arising under the Rent Restriction Acts.
The gist of these cases
(Brown
v.
Draper
[1944]
K.B.
309;
Old
Gates
Estates
v.
Aleaander
[1950]
1
K.B.
811;
Midmeton
v.
Baldock
[1950]
1
K.B.
657)
was that, as a tenant of rent-controlled
premises, a deserting husband continues to be in possession through
his wife, that he cannot, even by an arrangement with the laddlord,
give the lgtter the right to evict her, and that he cannot revoke the
licence he has given her to occupy the matrimonial home, not,
at
any rate, as long as she is not guilty of matrimonial misconduct.
In
Wabe
v.
Taylor
[1952] 2
Q.B.
785; 119521 2
All E.R.
420, the
Court
of Appeal (Somervell, Birkett and
Hodson
L.JJ.) had to deal
with a case in which the deserted wife had committed adultery, but
there was
no
evidence that the husband had revoked her licence
to
occupy the rent-controlled premises of which he was the tenant.
The court left the question
open,
whether he could have withdrawn
the licence and thus given the landlord the right to evict the wife.
In
any event, as long as this had not happened, the landlord
was
not entitled to plead the wife’s matrimonial misconduct and thus
not entitled
to
evict her. The husband remained through her
in
possession of the rent-controlled house.
The principal problem
is
whether the wife’s right
is
an equit-
able interest in the land, a
jus in rem,
binding third parties with
the exception of bona fide purchasers for value. Roxburgh
J.
in
Thompson
v.
Earthy
[I9511 2
K.B.
596; [I9511 2
All
E.R.
285,
answered the question in the negative and declared himself
to
be
unwilling to create
a
novel kind of equitable interest, but the report
does not show whether the plaintiff had bought with
or
without
notice of the wife’s presence in the house.
On
the other hand,
both
in
Lee
v.
Lee
119521 2
Q.B.
489; [1952]
1
All E.R.
1299
and
in
Errington
v.
Errington
[1952]
1
K.B.
290; 119521
1
All E.R.
149,
Denning L.J. expressed the opposite view.
One might have thought that this question had been settled by the
decision of the Court
of
Appeal in
Bendall
v.
McWhirter
119523 2
Q.B.
466; [1952]
1
All E.R.
1807,
and by that of Jones
J.
in
Ferris
v.
Weaven
[1952] 2
All
E.R.
283,
but the case of
Hole
v.
Cuzen
[1953]
1
All E.R.
87,
reported after
Dr.
Cheshire had delivered the
lecture printed in the January issue of this
Review,
shows that the
situation
is
as problematical as ever.
It
reveals a conflict
of
opinion
on
a fundamental problem of law and a state of uncertainty which,
it
is
submitted, ought to be terminated at the earliest possible
moment either by a decision of the House of Lords
or
by statute.
Some may feel that it reveals the need for an appeal to the highest
court by
a
public authority
Lc
duns l’inte‘r&t de
la
Zoi.”
The nature of the deserted wife’s right to occupy the matri-
monial home is
no
longer in doubt.
It
is that of a licensee
occupying by virtue of a licence indistinguishable from a con-
tractual licence and irrevocable by the husband as long as the
marriage lasts and she is not guilty of matrimonial misconduct,
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