Rawlings v Rawlings

JurisdictionEngland & Wales
JudgeLORD JUSTICE WILLMER,LORD JUSTICE HARMAN,LORD JUSTICE SALMON
Judgment Date14 May 1964
Judgment citation (vLex)[1964] EWCA Civ J0514-4
CourtCourt of Appeal
Date14 May 1964

[1964] EWCA Civ J0514-4

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Willmer

Lord Justice Harman and

Lord Justice Salmon.

Robert Brightwell Rawlings
and
Nellie Louise Rawlings

MR P. REECE (For MR R. LAUGHTON-SCOTT), (instructed by Messrs. Park Nelson and Dennes & Co.) appeared on behalf of the Appellant (Respondent).

MR PETER DOW, (instructed by Messrs. Philcox Sons & Edwards) appeared on behalf of the Respondent (Applicant).

LORD JUSTICE WILLMER
1

This appeal raises a difficult question under Section 17 of the Married Women's Property Act, 1882, and arises out of an application by a wife for an Order for the sale of the matrimonial home, which is admittedly the property of both spouses. The case was heard by Mr. Registrar Forbes, who made an Order for the sale of the property, from which the husband now appeals.

2

The relevant facts can be shortly stated and are not, I think, in dispute. The parties were married as long ago as the 17th August, 1929. There is one son, who I understand will be 21 by the time this Judgment is delivered, and who has always resided at home. In 1957 the parties purchased a bungalow at 54, Trewsbury Road, Sydenham, which became the matrimonial home. Both parties contributed substantial sums towards the purchase price, and the balance was borrowed on mortgage from a building society. It is alleged by the wife, and accepted by the husband, that the bungalow is owned jointly between them in equal shares.

3

In June, 1962, the wife deserted the husband - at any rate, she withdrew from cohabitation and has never alleged that she had just cause for doing so. The husband remained in residence at the matrimonial home with his son. He still hopes for a reconciliation and that the wife will return to him. No matrimonial proceedings have been commenced on either side. The marriage, therefore, remains a subsisting marriage, although the parties are separated. Up to the time when she left the wife was paying the instalments due monthly on the mortgage. Since the wife departed the husband has been making these payments.

4

It is not in dispute that the effect of the conveyance into joint names is that the parties hold the property as joint tenants subject to a statutory trust for sale, with power of postponement, and on terms that in the event of a sale the net proceeds, after paying off the mortgage debt, should be shared equally between them. The husband desires to retain theproperty and to continue residing there, partly because he still hopes that the wife will return to him and meanwhile desires to maintain a home for his son, and partly because he has himself purchased an adjacent plot of land the value of which would be depreciated if the bungalow were sold separately. The wife, on the other hand, desires to sell, and to have paid out to her her share of the proceeds so that she may realise her investment. The wife, accordingly, instituted the present proceedings under the Married Women's Property Act, asking interalia for an Order for the sale of the bungalow in pursuance of Section 7, subsection (7) of the Patrimonial Causes (Property and Maintenance) Act, 1956.

5

The learned Registrar gave reasons in writing for his decision, and according to these two points were taken on behalf of the husband. First, it was contended that the transfer of the property in to the joint names of the spouses constituted a post-nuptial settlement with which it would not be proper to interfere in proceedings under the Married Women's Property Act, 1882. Secondly, it was submitted that, even if that were not so, an Order for sale ought not to be made in favour of a deserting wife at a time when the marriage is still subsisting, especially having regard to the welfare of the son of the parties.

6

As to the first point, I think: there is no room for doubt that the transfer of the property into joint names would amount to a post-nuptial settlement within the liberal meaning attached to that phrase in the context of Section 25 of the Patrimonial Causes Act, 1950, and as such would be subject to the power of the court to make a variation order under that section in the event of a divorce. But, as the learned Registrar quite rightly pointed out, there being no decree of divorce at present, there is no present right to invoke that section. He accordingly rejected the argument on behalf of the husband, and said: "I do not consider what his contention that the transfer is a"post-nuptial settlement can be accepted as an effective answer to the wife's application so as to bar her from invoking the provisions of Section 17 of the Married Women's Property Act". while I do not suggest that the point is in any way conclusive, I do not think that the husband's contention that this was a post-nuptial settlement can be slightly brushed aside. If the husband can succeed in preventing the sale of the property, then in the event of hereafter obtaining a decree of divorce he would be entitled to apply for an order under Section 25 of the Matrimonial Causes Act. I express no view as to whether such an application would be likely to succeed and, if it did succeed, what kind of variation of the settlement in his favour the husband might obtain. But the effect of making an order for the sale of the property now would be to deprive the husband once and for all of any right to apply hereafter for this form of relief. It seems to me that, prima facie at least, it would be difficult to justify making such an order daring the subsistence of the marriage in favour of a deserting wife against an innocent husband.

7

With regard to the second point, the learned Registrar again decided against the husband's contention and expressed his conclusion as follows: "Inasmuch as the parties are, by reason of the terms of the transfer, entitled to the property as joint tenants, I consider that the discretion of the court to order a sale should be exercised in the same way as the discretion is exercisable when there is a trust for sale, with power to postpone, and one of the trustees does not concur in a postponement. (Section 30 of the Law of Property Act, 1925, and in Re Mayo (1943 Ch. p. 302). In such circumstances the court will order a sale, and accordingly I have come to the conclusion, not without some hesitation, that the discretion should, on the same principles, be exercised in the wife's favour".

8

I do not dissent from the view that the discretion should be exercised in accordance with the same principles as govern an application under Section 30 of the Law of Property Act, 1925. Indeed, I should have thought that proceedings under that Act would have been more appropriate than the present proceedings under Section 17 of the Married Women's Property Act. It seemed to me at once stage of the argument to he a matter of some doubt whether jurisdiction exists under section 17, seeing that there is here no question between the parties as to the title to the property, and no mention of possession was made either in the wife's summons or in the order made by the learned Registrar. But it has been accepted by counsel on both sides that this was a mere oversight and that the dispute between the parties has always been whether the husband could properly be required to give vacant possession of the property. Consequently, although I do not think that the present proceedings are really appropriate for the purpose of settling this dispute between the parties, I am unable to say that they are without jurisdiction.

9

I have formed the view, however, that the learned Registrar came to a wrong conclusion and failed to exercise his discretion judicially, in that he treated it as almost a matter of course that the order for sale should be made, and did not pause to consider whether, in the particular circumstances of the case, it was right and proper to make the order. In the special circumstances of this case, he should, in my judgment, have paid regard to the facts (a) that the marriage between the parties is still subsisting; (b) that the wife is at present a deserting party; and (c) that, so long as the situation remains as at present, the husband is under a duty to receive the wife back if she offers to return, for which purpose it is only right and proper that he should be allowed to retain the matrimonial home.

10

While there appears to be no authority directly in point, I find support for my view in several of the cases which havebeen cited. The nearest case is that of Jones -v- Challenger (1961 1 Q. C. p. 176) which actually arose out of an application under Section 30 of the Law of Property Act, 1925. There, as here, the parties were joint tenants of the matrimonial home which they held under a statutory trust for sale. But the circumstances differed in that in that case the husband had already obtained a decree of divorce against the wife. The husband remained in the matrimonial home and refused to agree to a sale. The wife accordingly applied under Section 30 for an order requiring the husband to concur in a sale, but the learned County Court Judge refused to make such an order. On appeal to this court it was held by a majority "that when property was acquired by husband and wife jointly for the purpose of providing a matrimonial home, neither party had a right to demand the sale of the property while that purpose still existed, for that might defeat the object behind the trust; but with the end of the marriage that purpose was dissolved and the duty to sell was restored; it was then for the court to look at all the circumstances and consider, not whether it was reasonable for the husband to continue to live in the house, or for the wife to receive her share of the trust property in cash, but whether it was inequitable for the wife, once the matrimonial home had gone, to want to realise her investment". Mr. Justice Donovan (as he then was) who...

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