Short v Short
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE DEVLIN |
| Judgment Date | 06 May 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0506-4 |
| Date | 06 May 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J0506-4
Lord Justice Hodson
Lord Justice Willmer and
Lord Justice Devlin
In The Supreme Court of Judicature
Court of Appeal
Mr FRANCIS L. LASKEY (instructed by Messrs Waterhouse & Co.) appeared on behalf of the Appellant husband.
Mr J. MARTIN COPE (instructed by Messrs Theodore Goddard & Co.) appeared on behalf of the Respondent wife.
This is an appeal from an order of Mr Registrar Kinsley adjourning a summons under section 17 of the Married Women's Property Act 1882, taken out by a husband for possession of premises, until Divorce proceedings pending between the husband and the wife have been determined unless the husband provides suitable alternative accommodation for the wife.
The matter arises in unusual circumstances. The wife has presented a petition for divorce on the ground of the alleged cruelty of the husband. He has denied the cruelty, and alleged that in August 1959 during his absence the wife committed adultery in his house. The wife has admitted this adultery and pleaded that it was conduced to by the cruelty of the husband. The husband is not unnaturally aggrieved that, his wife having entertained her paramour in his house in this way, the summons should be adjourned for an indefinite time when, as he maintains, the wife has by her admitted adultery forfeited all right to live in his house or be maintained by him.
The appeal, although listed in the list of final appeals, being against an order not disposing of the summons but adjourning it, was manifestly in my opinion interlocutory, and since the husband's notice of appeal was not given until after fourteen days, he was out of time. In these circumstances, the point not having been taken by the wife until very late in the proceedings, this court thought it right, while treating the appeal as interlocutory, to extend the time for appealing. The adjournment of a case is, however, discretionary, and unless it appears that the husband's right to evict his wife from the house at once was unanswerable, it is not possible to say that the discretion was not judicially exercised.
The jurisdiction under section 17 is itself discretionary. "The Judge may make such order with reference to the property in dispute as he thinks fit or may direct such application to stand over from time to time"; and the question again is was the refusal to make the order sought until after the hearing of the suit for divorce a judicial exercise of discretion.
It is true that at common law an adulterous wife loses her right to support unless her adultery has been connived at or condoned by the husband although the difficulties in the way of the husband in a common law action for ejectment may well have been insurmountable. (See Bramwell v. Bramwell, 1942, volume 1 King'd Bench Division, page 370, per Lord Justice Goddard) These difficulties are removed by the Act of 1882 for, as Lord Justice Goddard pointed out, section 17 expressly provides the procedure for deciding questions between husband and wife as to the possession of property.
How then is the discretion to be exercised? Can it be a judicial exercise to leave an adulterous wife in the husband's house in effect excluding him from occupation of his own property even for a limited period? If the matter were looked at Independently of the divorce proceedings, or any rights conferred on adulterotis wives by statute, the answer might well be in favour of the husband.
The divorce proceedings cannot however, in my opinion, be ignored; see per Lord Justice Tucker in Stewart v. Stewart, 1948, volume 1 King's Bench Division, page 507 at page 513. That was a summons under section 17 of the Married Women's Property Act, 1882, where a husband was the tenant of premises in which he had been living with his wife, and divorce proceedings were pending on the husband's allegation of adultery by the wife. "on his application under section 17 of the Married Women's Property Act 1882, the county court Judge made an order declaring that he was the tenant of the premises, and that the wife should vacate them".
On appeal it was held that the court would not interfere with the Judge's exercise of discretion, and I read a passage on page 513 from Lord Justice Tucker's Judgment: "There is jurisdiction in the county court judge under this section to make an order for possession at the instance of husband or wife against the other spouse; but the cases do show that, whether in that form of proceeding or in some other form of proceeding by a husband against a wife or a wife against a husband, where the court is considering the question of possession or occupation of the matrimonial home, it will be very slow to make any order concerned with the legal rights of the parties which might have the effect of depriving either wife or husband of the right to occupy the matrimonial home. The cases show that, whether an injunction or some other form of relief is being granted, great care must be taken in a normal case, where a marriage is subsisting, where the parties have hitherto been living together, and where no order has been made by the Divorce Court or by the justices touching on the right of the one spouse to live apart from the other, that the rights of a wife or husband should be safeguarded in the form of the order made. I do not think that the cases go beyond that. It must always be a question for the exercise of the discretion of the Judge, on all the facts before him in all the circumstances, whether in a particular case he thinks it proper to make the order for possession which he clearly has jurisdiction to make. It is true that the divorce proceedings here had not come to trial. They were pending, and the county court Judge could not be, and was not, asked to go into the merits of those proceedings; but I think that they were a matter which he was entitled to take into account when considering whether, in the circumstances of the particular case, he ought to make an order for possession or not. The rights of one spouse with regard to the matrimonial home as against the other may vary according to the circumstances of the particular case, and, although it is, no doubt, the duty of the husband to provide a place for the wife to live in until the decree is made absolute, it does not necessarily follow (in fact in many cases it would be very inconvenient and embarrassing) that she should be in rooms under the same roof as he. It was pressed upon the Judge that, in the particular circumstances of this case, he should not make an order for possession except on the terms that it was not to take effect unless and until the husband had provided other accommodation elsewhere for the wife. That is an order which he might very well have made, but I find it impossible to say that, in refusing to make an order in that particular form, he was not exercising his discretion in a judicial manner".
Further more, in divorce proceedings the wife has a right to apply alimony pendente lite and is not by her adultery disqualified from so applying for she is a competent suitor. ( Welton v. Welton, 1927 Probate, page 162 and Waller v. Waller, 1956 Probate, page 300).
After a divorce, if a decree is pronounced in her favour or even if a decree is pronounced against her, she is still entitled to apply for maintenance under the terms of the statute; see the Matrimonial Clauses Act 1950, section 19. Further if there is no divorce, her own adultery would not necessarily be a bar to her obtaining maintenance under the Summary Jurisdiction Acts if her adultery were found to be conduced to by her husband's conduct; see the Summary Jurisdiction Act 1895, section 6.
Inroads have thus been made upon the common law position by statute to a great extent, and I am unable to hold that, because at common law her rights as a wife to bed and board have been forfeited, there is no room for the exercise of discretion to postpone at least her expulsion from the home, the occupation of which will or may have to be considered in conjunction with any application she may make for support from her husband. The statute of 1882 in conferring the discretion has, it aeems, kept in mind that at any rate so long as the marriage tie exists, which prima facie it is in the public interest to maintain, it Is not always desirable that strict rights of spouses should be insisted upon. Having ascertained the rights of the parties upon the evidence submitted, the court is not compelled as a matter of law at the instance of either party to allow these rights to be enforced. For these reasons I would dismiss the appeal.
LORD JUSTICE WILIMER: I have no doubt that the husband instituted these proceedings under section 17 of the Married Women's Property Act, 1882, for the very good reason that at common law he could have had no right to bring an action for possession against his wife. In Bramwell v. Bramwell, 1942, volume 1 King's Bench Division, page 370, Lord Justice Goddard said at page 374: "I have the greatest doubt whether a husband can bring an action for the recovery of land against his wife, alleging that she is wrongly in occupation of it, because, if she is wrongly in occupation of it, it seems to me she is a trespasser and therefore he is suing her for a tort. He is not, however, left without remedy, as section 17 of the Married Women's Property Act, 1882, expressly provides the procedure for deciding a question between husband and wife as to the possession of property".
The same view was expressed by Lord Justice Denning, in Hutchinson v. Hutchinson, 1947, volume 2 All England Law Reports, page 792 at page 793, and again by Lord...
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