P v P (Interim Exclusion Order)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Family Division |
CAZALET, J
Exclusion order – whether court had jurisdiction to restrain former spouse from returning to or entering former matrimonial home – property jointly owned by both spouses.
Injunction – application that former spouse who had left matrimonial home be restrained from returning – property jointly owned – whether court had jurisdiction – whether court should make order sought.
Matrimonial home – jointly owned by spouses – husband leaves – parties divorced – wife seeking order restraining husband from returning – whether court had jurisdiction – whether court should make order sought.
The parties were married in 1974. They had two children who were now adults. The matrimonial home of the parties was a property held in their joint names. The wife petitioned for divorce relying on the husband's conduct: she alleged that he had been violent towards her throughout the marriage. The petition proceeded as an undefended suit. A decree nisi was pronounced in July 1992 and this was made absolute in September 1992. In August 1992 the wife applied for injunctive relief. An order was made on the basis of both parties' undertaking to the court not to assault, threaten, or pester each other. The wife's application for an order to cause the husband to leave the matrimonial home was adjourned as the husband was about to leave the country, and he did in fact go to Poland. On 31 July 1995 he returned to England. He proposed to stay at the former matrimonial home. The wife again sought injunctive relief. The husband gave undertakings not to assault, molest, harass or otherwise interfere with the wife and to vacate the former matrimonial home by 1 September 1995. The husband duly left the property on 1 September 1995 and returned to Poland.
Proceedings for ancillary relief were still pending and in December 1995 the husband's solicitors indicated that he would be coming to England in February 1996 and proposed to stay at the former matrimonial home as before. The wife applied for an interim order that the husband be restrained from returning to or entering the former matrimonial home pending an inter partes hearing. In support of her application the wife filed an affidavit in which she stated that during the husband's visit in August 1995 she was always worried that he would break the terms of his undertaking and she became so distressed by his return that she became unwell. Her doctor stated in a medical certificate that she was then suffering from severe anxiety. In a report dated 5 February 1996 the doctor stated that the wife was suffering from a deteriorating depressive illness due to her marital problems.
The husband was not in court as he had not yet arrived in England. However, he was represented by counsel who submitted that the court did not have jurisdiction to make the
order sought. It was accepted on both sides that neither the Domestic Violence and Matrimonial Proceedings Act 1976 nor the Matrimonial Homes Act 1983 applied.
Held – (1) Where a former spouse had a proprietary interest in the former matrimonial home, the divorce court had jurisdiction under s 37(1) of the Supreme Court Act 1981 to entertain an application by that spouse for an injunction to exclude the other spouse from the property. It was not necessary for the spouse making the application to have the sole proprietary interest. Such an application could be made by a spouse who had a joint proprietary interest with the other spouse. Further, in the present case, it was a significant factor that the property was the subject-matter of proceedings as between the parties. In the circumstances the court had jurisdiction to deal with the wife's application.
(2) As to whether the court would exercise its discretion to make an order on the wife's application, relevant factors were that the husband had left the property in 1992 and set up home in another country, that the wife had alleged violence throughout the marriage, and that her affidavit contained allegations showing that it might be open to her to assert that in August 1995 the husband was in breach of the undertakings he had given and had harassed her. Further, what was sought was not an ouster order properly so called. The husband was not being driven out from his home as he had a home elsewhere; he simply sought to stay at the former matrimonial home whilst in England to instruct his solicitor in regard to the ancillary relief proceedings. In the circumstances an interim order would be made restraining the husband from returning to or entering the former matrimonial home. The order would run for seven days pending an inter partes hearing at which time the issue could be fully argued.
Statutory provisions referred to:Domestic Violence and Matrimonial Proceedings Act 1976.
Family Proceedings Rules 1991, r 2.64.
Matrimonial Homes Act 1983, s 1.
Supreme Court Act 1981, s 37(1).
Cases referred to in judgment:Beasley v Beasley [1969] 1 WLR 226.
Des Salles D'Epinoix v Des Salles D'Epinoix [1967] 1 WLR 553; [1967] 2 All ER 539.
Kenny v Preen [1963] 1 QB 499.
Lucas v Lucas [1991] FCR 901.
Montgomery v Montgomery [1965] P 46; [1964] 2 WLR 1036; [1964] 2 All ER 22.
Richards v Richards [1984] AC 174; [1983] 3 WLR 173; [1983] 2 All ER 807.
Robinson v Robinson [1965] P 39; [1964] 2 WLR 138; [1964] 3 All ER 813.
Ruddell v Ruddell(1967) 111 SJ 497.
Webb v Webb [1986] 1 FLR 541.
Amanda Barrington-Smyth for the wife.
Geoffrey Ames for the husband.
MR JUSTICE CAZALET.The application before me is made in divorce proceedings between the petitioner, Mrs P and the...
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