Pettitt v Pettitt

JurisdictionUK Non-devolved
JudgeLord Reid,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Upjohn,Lord Diplock
Judgment Date23 April 1969
Judgment citation (vLex)[1969] UKHL J0423-2
Date23 April 1969
CourtHouse of Lords
Pettitt (A.P.)

[1969] UKHL J0423-2

Lord Reid

Lord Morris of Borth-y-Gest

Lord Hodson

Lord Upjohn

Lord Diplock

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Pettitt (A.P.) against Pettitt, that the Committee had heard Counsel, as well on Thursday the 6th, as on Monday the 10th, Monday the 17th, Tuesday the 18th and Wednesday the 19th, days of February last, upon the Petition and Appeal of Hilda Joy Pettitt (Assisted Person), of Tinkers Cottage, Collington Lane East, Bexhill-on-Sea, in the County of Sussex, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Civil Division) of the 30th of January 1968, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet (which said Appeal was heard ex parte as to the Respondent Harold John Pettitt, he not having lodged a Case in answer to the said Appeal though ordered so to do) (in which said Appeal The Queen's Proctor appeared as amicus curiae); and due consideration had this day of what was offered in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Civil Division), of the 30th day of January 1968, complained of in the said Appeal, be, and the same is hereby, Reversed: And it is hereby Declared, That the Respondent has no beneficial interest in the proceeds of the sale of Tinkers Cottage, Collington Lane East, Bexhill-on-Sea, in the County of Sussex: And it is further Ordered, That the Costs incurred by the said Appellant in respect of the said Appeal to this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Hastings District Registry, to do therein as shall be just and consistent with this Judgment.

Lord Reid

My Lords,


The Appellant was married in 1952. For about nine years she and her husband lived in a house which she had inherited. During that time her husband carried out a number of improvements, largely redecorating, on which he says he spent some £800. In 1961 this house was sold and she acquired another. After this had been paid for there was a surplus of a few hundred pounds and he used this money, apparently with the consent of the Appellant, in paying for his car. The spouses lived for about four years in the new house. Then the Appellant left her husband alleging cruelty and she obtained a divorce in 1967. The husband then left the house and raised the present proceedings. He said that during those four years he carried out a considerable number of improvements to the house and garden and estimated that in doing so he performed work and supplied material to a value of £723. He sought a declaration that he was beneficially interested in the proceeds of sale of the house in the sum of £1,000 and an order on the Appellant to pay. Then an order was made that she should pay him £300. The Court of Appeal reluctantly dismissed her appeal holding that they were bound by the decision in Appleton v. Appleton [1965] 1 W.L.R. 25. They gave leave to appeal.


For the last twenty years the law regarding what are sometimes called family assets has been in an unsatisfactory state. There have been many cases shewing acute differences of opinion in the Court of Appeal. Various questions have arisen, generally after the break-up of a marriage. Sometimes both spouses have contributed in money to the purchase of a house: sometimes the contribution of one spouse has been otherwise than in money: sometimes one spouse owned the house and the other spent money or did work in improving it: and there have been a variety of other circumstances. It might be possible to decide this case on somewhat narrow grounds without examining the wider questions, but I do not think that that would be satisfactory. The fact that the Appellant has legal aid has enabled the argument to range widely, and I think that it is at least desirable, if not necessary, to deal with the various issues which have emerged.


Many of the cases have been brought by virtue of the provisions of section 17 of the Married Women's Property Act 1882. That is a long and complicated section: the relevant part is as follows:

"In any question between husband and wife as to the title to or possession of property, either party … may apply by summons or otherwise in a summary way to any judge of the High Court of Justice … and the judge … may make such Order with respect to the property in dispute … as he thinks fit."


The main dispute has been as to the meaning of the latter words authorising the judge (including a County Court judge and now a Registrar) to make such order with respect to the property in dispute as he thinks fit. These are words normally used to confer a discretion on the Court: where the discretion is limited, the limitations are generally expressed: but here no limitation is expressed. So it has been said that here these words confer on the Court an unfettered discretion to override existing rights in the property and to dispose of it in whatever manner the judge may think to be just and equitable in the whole circumstances of the case. On the other hand it has been said that these words do not entitle the Court to disregard any existing property right, but merely confer a power to regulate possession or the exercise of property rights, or, more narrowly, merely confer a power to exercise in proceedings under section 17 any discretion with regard to the property in dispute which has already been conferred by some other enactment. And other intermediate views have also been expressed.


I would approach the question in this way. The meaning of the section cannot have altered since it was passed in 1882. At that time the certainty and security of rights of property were still generally regarded as of paramount importance and I find it incredible that any Parliament of that era could have intended to put husbands' property at the hazard of the unfettered discretion of a judge (including a County Court judge) if the wife raised a dispute about it. Moreover this discretion, if it exists, can only be exercised in proceedings under section 17: the same dispute could arise in other forms of action; and I find it even more incredible that it could have been intended that such a discretion should be given to a judge in summary proceedings but denied to the judge if the proceedings were of the ordinary character. So are the words so unequivocal that we are forced to give them a meaning which cannot have been intended? I do not think so. It is perfectly possible to construe the words as having a much more restricted meaning and in my judgment they should be so construed. I do not think that a judge has any more right to disregard property rights in section 17 proceedings than he has in any other form of proceedings.


It was argued that the present case could be decided by applying the presumption regarding advancement. It was said that if a husband spends money on improving his wife's property, then, in the absence of evidence to the contrary, this must be regarded as a gift to the wife. I do not know how this presumption first arose, but it would seem that the judges who first gave effect to it must have thought either that husbands so commonly intended to make gifts in the circumstances in which the presumption arises that it was proper to assume this where there was no evidence, or that wives' economic dependance on their husbands made it necessary as a matter of public policy to give them this advantage. I can see no other reasonable basis for the presumption. These considerations have largely lost their force under present conditions, and, unless the law has lost all flexibility so that the Courts can no longer adapt it to changing conditions, the strength of the presumption must have been much diminished. I do not think that it would be proper to apply it to the circumstances of the present case.


And there is another matter I must deal with before coming to the crucial questions. There are at least suggestions in some cases that property rights may be different before and after the break-up of a marriage. I can see no ground for this. There are other occasions for disputes as to rights of property besides break-up of the marriage, and it appears to me that the property rights of the spouses must be capable of determination immediately after the property has been paid for or the improvements carried out and must in the absence of subsequent agreements or transactions remain the same. There are also suggestions that agreements or arrangements made by the spouses may be rendered inoperative by, or may have a different effect after, the breakdown of the marriage. I suppose that an agreement could take an unusual form, but as a general rule I would think that most improbable. The question does not arise in the present case.


I can now come to the main question of how the law does or should deal with cases where the title to property is in one of the spouses and contributions towards its purchase price have been made or subsequent improvements have been provided by the other. As regards contributions, the traditional view is that, in the absence of evidence to the contrary effect, a contributor to the purchase price will acquire a beneficial interest in the property: but as regards improvements...

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1 firm's commentaries
  • I Also Own A Share Of The Property!
    • United Kingdom
    • Mondaq United Kingdom
    • 18 April 2011
    ...beneficial interest must prove that the legal owner holds the property upon trust to give effect to his interest: see Pettitt v. Pettitt [1970] AC 777 at 813-814, HL per Lord However, depending on the circumstances this is not too problematic to overcome. Beneficial ownership may be establi......
31 books & journal articles
  • Osborne v Estate of Osborne: an equitable agreement or a contract in law: merely a matter of nomenclature?
    • Australia
    • Melbourne University Law Review Vol. 27 No. 1, April 2003
    • 1 April 2003
    ...Cf Cope, above n 4, 526. (130) (1995) 14 WAR 35. (131) Ibid 41-2 (Master Adams). (132) (1967) 64 DLR (2d) 48, 49. Cf Pettitt v Pettitt [1970] AC 777, 796 (Lord Reid); Cassidy, above n 4, (133) [2001] VSCA 228 (Unreported, Winneke P, Buchanan and Vincent JJA, 14 December 2001) [18] (Winneke ......
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill Dissenting Judgments in the Law Preliminary Sections
    • 28 August 2018
    ...3 WLR 1032, [1993] 1 All ER 42, HL 271 Peso Silver Mines Ltd (NPL) v Cropper [1966] SCR 673, Canadian Sup Ct 161, 173 Pettitt v Pettitt [1970] AC 777, [1969] 2 WLR 966, [1969] 2 All ER 385, HL 223–225, 231 Pioneer Container, The [1994] 2 AC 324, [1994] 3 WLR 1, [1994] 2 All ER 250, PC 95, 1......
    • Singapore
    • Singapore Academy of Law Journal No. 2009, December 2009
    • 1 December 2009
    ...not apply to gifts between a man and his mistress. 75 [1999] Ch 373 at 385, citing support from numerous other passages: Pettitt v Pettitt[1970] AC 777 at 824, per Lord Diplock; Tribe v Tribe[1996] Ch 107 at 118, per Nourse LJ and 128—129, per Millett LJ. 76 [1994] 1 AC 340. 77 Law Commissi......
    • United States
    • 1 January 2021 categories and the rationale emerging from accumulated practices. See Priel, supra note 1, at 610-12. (296) See Pettit v. Pettit [1969] 2 All ER 385 (HL) at 390 (Lord Reid); BURROWS, supra note 141, at 77-81, 81 n.87 (2018) (positing a zone of "lawyer's law" that is unlikely to be add......
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