Pettitt v Pettitt

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date29 Jan 1968
Judgment citation (vLex)[1968] EWCA Civ J0129-2

[1968] EWCA Civ J0129-2

In The Supreme Court of Judicature

Court of Appeal

Civil Division

Appeal from Register Region Green at Hastings 11th April. 1967.


Lord Justice Wilimer

Lord Justice Danckwerts and

Lord Justice Russell

Hilda Joy Pettitt
Harold John Pettitt

Mr EDWARD A. MACHIN (Instructed by Messrs Preston, Lane-Claypon & 0'Kelly, Agents for Messrs Perring & C o., Hastinge) appeared on behalf of the Appellant (Petitioner).

No appearance for RESPONDENT.


This case arises out of an application by a husband under section 17 of the Married Women's Property Act 1882 for a declaration that he is beneficially interested in the proceeds of sale of a house which had been the matrimonial home of the parties. It is not in dispute that the house was purchased with funds provided entirely by the wife, and that she took the conveyance in her own name. It is alleged by the husband, however, that during the period while the parties resided together he carried out certain work by way of redecoration and improvement of the property the result of which was to increase its value to the extent of about 1,000, and he claimed to be beneficially interested to that extent. The matter came before Mr Registrar J.D. Beamish Green at Hastings on the 3rd March 1967, and by his order of the 11th April 1967 the learned registrar ordered that the husband had a beneficial interestin the property to the extent of 300, which sum ho directed that the wife should pay to the husband. He also made an order for costs against the wife.


The wife has now appealed to this court, contending that the husband has not, and never had, any interest in the property in question. There is also a subsidiary appeal against the order for costs, which it is said was wrongly made having regard to the fact that the wife was an assisted person with a nil contribution. We have had the benefit of hearing a full argument from counsel for the wife. But unhappily for us the husband has not seen fit to take any part in the proceedings before us, or to instruct counsel to present any argument on his behalf. We have, therefore, been deprived of the advantage of hearing argument on both sides.


The facts of the case are simple. The parties were married on the 13th August 1952, and there are two children of the marriage, both boys. Upon their marriage the parties took up residence at 12, Chantry Avenue, Bexhill, a house which had been left to the wife by her deceased grandmother. The parties resided at this address till 1960, when the property was sold, the proceeds of sale amounting to 4,241. But of the proceeds of sale a plot of land was purchased. in Collington Lane, East, Bexhill, where & bungalow called Tinker's Cottage was erected, the total cost amounting to 3,813. Here the parties resided until February 1965, when the wife left the husband and went to reside elsewhere, taking the two boys with her. The husband continued to live in Tinker's Cottage, rent free, until shortly before the hearing before the registrar in March 1967.


In 1965 divorce proceedings were commenced, which resulted in the wife obtaining a decree on the ground of cruelty. An order for maintenance was made in respect of the children, but there was no order for maintenance of the wife. The question of custody of the children was adjourned to chambers, and the issue as to property rights in respect of the matrimonial home was left unresolved. Hence the present proceedings.


The husband alleged that during the time when the parties resided at 12, Chantry Avenue, he carried out substantial work by wayof improvement of the property as a result of which he said that it was sold for about 750 more than it would have fetched in its original state. He did not, however, base any claim on this assertion, the reason being, as I understand it, that in order to compensate the husband for the work he had done the wife allowed him to use the balance of the proceeds of sale, which remained after paying for the building of Tinker's Cottage in order to discharge hid outstanding liability on his car.


The husband's a claim was thus based entirely on work which he claimed to have carried out by way of improvement of Tinker's Cottage. He put the value on his work (which comprised a certain amount of redecoration, building of cupboards and other improvements and work in laying out the garden) at 723. But he claimed that the effects of his work was to increase the value of the property by 1,000. It is not in dispute that the value of the property at the time of the hearing was 6,250 to 6,600.


Section 17 of the Married Women's Property Act 1882, omitting immaterial words, provides 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". By Rule 77 of the Matrimonial Causes Rules 1957 the jurisdiction conferred by the section may be exercised by a registrar.


In the present case no question arises with regard to possession of the property in dispute. The husband's summons contained no claim for possession, and I understand that he has already vacated the premises. We are concerned only with title and with the husband's claim to a beneficial interest therein.


In recent years there has been a considerable number of cases in which questions of title in respect of the matrimonial home have been dealt with under section 17. This has been due in the main, I think, to two causes. First, social habits have changedin that great numbers of married women In these days go out to work and frequently pool their earnings with those of their husbands, the common pool being used to defray all the expenses of the home, including mortgage payments in respect of the purchase of the house. Secondly, owing to the recent increase in the value of house property, it is not unusual to find that the equity of redemption represents a very considerable sum of money. Many of the reported cases have arisen in the context of a house conveyed into the joint names of the spouses, both spouses having contributed in one way or another to the initial coat of the purchase and to the payment of mortgage instalments. Except in so far as they throw light on the true purpose and proper application of section 17, I do not find it useful to refer further to these cases. For the situation in the present case is quite different, having regard to the fact that Tinker's Cottage was indubitably acquired with funds wholly provided by the wife, and the conveyance was taken in her name alone.


In cobb v. cobb, (1956) Weekly Law Reports 751, however, Lord Justice Rooter said at pages 736/757: "I know of no power that the court has under section 17 to vary agreed or established titles to property. It has power to ascertain the respective rights of husband and wife to disputed property, and frequently has to do so on very little material; but where, as here, the original rights to property are established by the evidence, and these rights have not been varied by subsequent agreement, the court cannot, in my opinion, under section 17 vary those rights merely because it thinks that in the light of subsequent events the original agreement was unfair".


This statement of principle has been repeatedly accepted and followed in subsequent cases, and must now, I think be taken to have been approved by the House of Lords in National Provincial Bank Limited v. Hastings Car Mart Limited, (1965) Appeal Cases 1175; see per Lord Hodson at pages 1280/1221. Lord Upjohn at pages 1235/1236 and Lord Wilberforce at page 1246. In Bedson v. Bedson (1965) 2 Queen's Bench Division 666, which came before this court shortly afterwards, Lord Denning (Master of the Rolls), who had at one time been disposed to favour a somewhat wider view, of the effect of thesection, said at page 677: "I have myself in the past preferred to give it a liberal interpretation in keeping with the width of the words used by Parliament. But those who are wiser than I am have declared that it does not enable the court to vary existing rights. We have always to go back to see what the rights of the parties actually are. I accept this". A similar statement of the principle by Lord Justice Diplock is to be found in the very recent case of Ulrich v. Ulrich, (1968) I All England Law Reports 67, at page 71.


In the present case there can be no room for doubt that an the time when Tinker's Cottage was acquired in 1960, the wife had an established title to the property, and the husband had none. It has never been suggested that there was any subsequent agreement varying the rights of the parties. How then can it be suggested that the husband is now entitled to assert a beneficial interest in the property? The answer put forward on his behalf was that he acquired such a beneficial interest by reason of the work which he carried out with his own hands by way of renovating and improving the property. In the absence of any agreement, this assertion could be justified only on the basis that the court ought to impute to the parties some common intention that the husband was to acquire an interest in the property commensurate with the value of the work which he did.


Viewing the matter on general principles, and apart from authority, I see three grave objections in the way of accepting this contention. (1) The husband has ever since 1960 had the benefit of living rent free in the house provided by his wife, and he has further been relieved of what would otherwise have been his duty of providing the wife with a home. Although there is no evidence to show what the rental value of Tinker's Cottage may be, I think it must be obvious that the benefit which...

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