Possession Of The Matrimonial Home In Australia
| Author | H. TARLO |
| Date | 01 September 1959 |
| Published date | 01 September 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00554.x |
POSSESSION
OF
THE
MATRIMONIAL
HOME
IN
AUSTRALIA
IN
recent years, the Australian courts have had before them
a
number of cases
on
the problems associated with this topic. The
more noteworthy
of
them are mentioned herein.'
1.
HUSBAND
AND
WIFE
CASES
It
may be thought that
it
is
rather late in the day to raise the point
whether
a
husband can bring
an
action for the recovery of land
against his wife. However, the English acceptance
of
the view that
he cannot obtain possession, at least of the matrimonial home,
except by
an
order of the court under the Married Women's Property
Act,
1882,
8.
17,
stems mainly from doubts expressed
obitm
by
Goddard
L.J.
(as
he then was) to the effect that ejectment proceedings
are tortious and therefore precluded by section
12
of the
1882
Act
it
has never been expressly decided. The English view was followed
first by the
Full
Supreme Court of N.S.W.:
and
then by the Supreme
Court of Victoria, in
a
case in which Herring
C.J.
was at pains to
emphasise the truly discretionary nature of the jurisdiction, in
support of his contention that, despite the views of certain judges,
the wife
did
not have
a
right of
a
proprietary character, but merely
a
licence from her husband to remain in ~ccupation.~ The nature
of
the licence was not elucidated.
The Victorian legislature has, since the decision last mentioned,
carried out the reform, suggested by the Report
of
the Royal
Commission
on
Marriage and Divor~e,~ that the remedies
in
tort
given to the wife by section
12
of the Married Women's Property
Act,
1882
(Eng.)
as
against her husband, for the protection and
security
of
her property, should also be conferred reciprocally
on
the
husband.' The Report contemplated that the remedies conferred
on
a
husband or wife by an amended section
12
would
be
subject to
the rights in respect
of
the matrimonial home which were provided
for both husband and wife
in
their recommendation.' This has not
1
The earlier
mee8
were noted
by
G.
H.
L.
Fridmsn
in
(1964)
17
M.L.R.
82.
a
Bramwell
v.
Bramwell
[1942]
1
K.B.
370,973974.
a
Henderson
v.
Henderson
(1950) 61 S.R.(N.S.W.) 217
(noted
(1954) 17
M.L.R.
83);
but nee
Aaron
v.
Aaron
(1944) 61 W.N.(N.S.W.)
93,
in which Street C.J.
held that
a
husband might aue hie wife
in
ejectment if he alleged
no
wrongful
act
and claimed
no
dSmSge.8.
4
Public
Trwtee
v.
Kirkham
[1966]
V.L.R.
64.
For
a
osluable
discussion
of
the
mpe
and exerciae of the
court'e
deciaion, Bee
Re (Irose
[1958]
Qd.R.
269.
'
Marriage
(Property)
Act,
1966
(Vk.),
8.
6
(replaced now
by
Marriage Act,
1968
(Vic.),
8.
160).
7
See para.
685.
Cmd.
9678 (1956),
para.
704.
479
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