Smith v Baker

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE KARMINSKI,LORD JUSTICE WIDGERY
Judgment Date29 April 1970
Neutral Citation[1970] EWCA Civ J0429-2
Judgment citation (vLex)[1970] EWCA Civ J0429-8
CourtCourt of Appeal (Civil Division)
Date29 April 1970

[1970] EWCA Civ J0429-2

In The Supreme Court of Judicature

Court of Appeal

Revised

Before:

The Master of the Rolls (Lord Denning)

Lord Justice Widgery

Lord Justice Karminski

Samuel Charles Smith and Elsie Maud Smith as Personal Representatives of Dulcie Alwyn Baker, deceased.
and
Timothy Leonard Baker

MR. D. DRAYCOTT, Q.C. and MR PATRICK WILSON, instructed by Messrs. Kinch & Richardson, Agent for Messers. Lloyd & Pratt (Newport, Non,), appeared for the Appellant (Respondent).

MR. KENNETH JONES, Q.C. and MR. J.W.M TURNER, instructed by Messrs, Gartside and Rubin (Cwmbran), appeared for the Respondents (Petitioners).

THE MASTER OF THE ROLLS
1

THE MASTER OF THE ROLLS:

2

The husband and wife married in 1957. They had been courting for five or six years before marriage and they had been saving up. The wife had a goodly sum in her savings account. They wanted to build their own house. They bought a plot of land in 1958 for £95. Most of it was the wife's money. But the plot itself was conveyed into the Husband's name. They set to work to build a bungalow on it. It was to be their home, 27, Eveswell Park Road, Newport, in Monmouthshire. They did not employ a building contractor. They did a great deal themselves. They bought materials and employed labour. The wife gave up her own work for 15 or 16 months. She did it solely to help with the building operations, and she did it for the whole period during which the house was being built. She gave up her earnings of £10 a week for that period. She was on the spot most of the time. She even helped dig the foundations herself.

3

They needed money, of course, to pay for the labour and materials. Instead of raising money on mortgage, the husband's mother provided the money. She provided a sum in all of £2,500. It was suggested that this £2,500 was a wedding present; but the Registrar found that she gave it because she had a warm affection for both of them. Her generosity was really intended for her son's benefit, although she was very happy if her daughter-in-law should benefit indirectly.

4

So the house was completed. Later in the marriage a loan of £1,000 was obtained on it. Some of it was used for a holiday and some to pay off a car. There was £4-00 left. That was put into a joint account at the bank opened by them for the benefit of both.

5

Afterwards, unfortunately, the marriage broke up. In December, 1966, the wife got a decree nisi on the groundof her husband's adultery. The decree was made absolute in May 1967. There was a summons under Section 17 of the 1882 Act to determine the rights of the husband and wife in the house and furniture arid other things. The only matter left for decision is the question of the house. The Registrar, on 5th June, 1968, determined that the house belonged to both in equal shares, although it stood in the husband's name.

6

But, before the order was drawn up, there was a sad event. The wife died on 16th December, 1968. She died intestate. They had no children. If she was entitled to half and half, her half-share would go to her parents as the next-of-kin.

7

The husband appeals to this Court, saying that the Registrar's decision was wrong Mr. Draycott, on his behalf, says that the Registrar's decision would be perfectly right according to the law as it was understood before Fettitt v. Pettitt in the House of Lords, which is reported in 1969 2 Weekly Law Reports at page 966, But he says that that case has altered-the law. He puts this case forward as a case where the house was built with moneys provided by the husband's mother: and that the wife's work on it was simply an improvement, which is to be disregarded. So the preponderant share should belong to the husband and very little to the wife.

8

I do not think that Pettitt v. Pettitt has altered the law to any material extent. In all these cases, the first question is: Was this a matrimonial home acquired by their joint efforts, intended to be the home for them and children (if they had any) for the future as far as they could see? The answer here is clear. This home was acquired and built by the joint efforts of both, of them as a continuing provision for the future. Each contributed a great deal in time and money. It was a joint enterprise. The wife contributed money for the plot, and money's worth for her part in the building operations. The husband contributed by his work andhis mother by £2,500. Their subsequent dealing throws a light on it They raised money for their joint purposes and put the balance into a joint account. The Registrar put it quite succinctly when he said: "It is quite clear that the parties 'popled, their income and, in my view, there was a general atmosphere of joint ownership to the income and capital of the parties".

9

I think that the Registrar directed himself quite rightly. This house was acquired by the joint efforts of both; it was joint property, although in the name of the husband only.

10

I would only add that the wife's work here falls within Jansen v. Jansen, 1965. P. 478, which, in my judgment, is still good law. It was said to be correct in Pettitt v. Pettitt by both Lord Reid and Lord Diplock. Lord Diplock at page 1001 said: - "Jansen y. Jansen falls into a different category. There it was not a case of leisure activities of the spouses. The husband, in agreement with his wife, had abandoned his prospects of paid employment in order to work upon her property". So here, the wife had abandoned her work for fourteen months In order to work on the house. It was an important contribution to their joint efforts. The beneficial ownership was in both jointly.

11

The remaining question is: In what proportions? In most of these cases the parties do not get down to proportions. It is impossible to say what they would have agreed about it if they had thought about it. In the absence of any clear division, the only course that the Court can take now, as it did before Pettitt v. Pettitt, is to say that it should be half and half.

12

So I find no fault in the judgment, and I would dismiss the appeal.

13

LORD JUSTICE WIDEGERY: I entirely agree with the judgment ofmy Lord and do not propose to take time by attempting to go over the ground again.

14

To my mind there are really three essential points in this case. One starts with the fact that the legal title to the house is in the husband, but it is common ground between the parties an argument before us that some agreement whereby the wife acquired some beneficial interest is clearly eniablished in this case. That being so, the only remainding question is: What share should be attrdbuted to helf. Should an attempt be made nicely to calculate what her share ought to be havingt regard to the account that she jut into the cost on the side and the value of her work subsequently, or ought one to apprcch the matter on the brouder hasis that the husband and wife are jointly entitled to the property, traatingt it not as beingt the subject of a mathemstical division but as "ours". In cases where their own understanding of the situation would be that the property is "curs" then the conclusion ought to be that they live equal beneficial interests in it. It seems to me that any attempt in this make to follow Mr. Draycott into a cirful division of the supposed value of the house on a strict mathematical basis would be to fall into the error of which courts were sometimes guilty before Pettitt v. Pettitt, namel;y to try to make what seems to be the fair agreement for the purties to make. The trbth of the matter is that they would not have condescended beyond the fact that this was their joint property; and accordingly equal shares is the correct answer.

LORD JUSTICE KARMINSKI
15

I also agree.

16

The most interesting and perhaps the most difficult point in this appeal is the question of proportion, to which both my Lord and Lord Justice Widgery have referred. Applying, I hope, some measure of reality to what happens when a marriage is entered into and a home is bought, the spouses are creating a home for themselves, and probably, they hope, for a family.Nice question of division are not applicable: In this kind of case where the means of the parties though considerable are somewhat limited, if they were asked the question at the time ofr the marriage "To whom does the home belong?", I agree with what Lord Justice Widgery has just said, that the answer would undoubtedly be "Ours". "Ours", therefore, implies no mathematical apportionment; but if they were pressed for an answer, they would almost undoubtedly say "Ours, of course, equally".

17

That is the position here, and I myself think that it would be quite wrong to try to apportion the interest other than as was done by the learned Registrar, namely equally.

18

I agree that this...

To continue reading

Request your trial
5 cases
  • Federal Commissioner of Taxation v Inkster
    • Australia
    • Federal Court
    • Invalid date
  • Jackson (Keith Ian) v Ruby Ann Jackson
    • Jamaica
    • Supreme Court (Jamaica)
    • 7 January 2010
    ...interests in, the property." 24 Mrs. Lee Clarke-Bennett, in support of her submissions for the wife, cited the cases of Smith v Baker [1970] 2 All ER 826, Nembhard v Nembhard E 186 of 1994 (delivered 14/11/2000) and Hew v Hew E 207 of 1998 (delivered 26/1/2001). The facts in those cases ar......
  • Henry v Henry
    • Trinidad & Tobago
    • High Court (Trinidad and Tobago)
    • Invalid date
  • Tittle v Tittle
    • Antigua and Barbuda
    • Court of Appeal (Antigua and Barbuda)
    • 29 October 1976
    ...the house had become the matrimonial home when they married in 1963. Counsel also cited a number of cases to the court, among which were Smith v. Baker [1970] 2 All E.R. 826, and Ulrich v. Ulrich, 1968 1 A.E.R., 67. He further submitted that both houses should be declared to be jointly owne......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT