SOCIAL POLICY AND THE MATRIMONIAL HOME
| Published date | 01 July 1973 |
| DOI | http://doi.org/10.1111/j.1468-2230.1973.tb01372.x |
| Date | 01 July 1973 |
THE
MODERN
LAW
REVIEW
Volume
36
July
1973
No.
4
SOCIAL POLICY AND
THE
MATRIMONIAL
HOME
THE
law relating to the matrimonial home has grown up in a
haphazard and piecemeal fashion
so
that while in some cases the
special position of the home is clearly recognised,' in others the
home has been treated simply like any other piece of property,
judges sometimes taking care to deny that the law recognises its
matrimonial character
at
all and in at least one instance denying
to a spouse the protection that would have been accorded to any
other person residing in the home.s In addition the
law
is uncertain
and gives rise to expensive litigation which exacerbates matri-
monial quarrels and causes delays which in many cases must cause
hardship to spouses and, most importantly, to children. There
is
obviously a need
for
clear basic rules governing the ownership and
occupation
of
the home, and also
for
clear guidelines in the inevitable
cases where the court must exercise its discretion in these matters.
What principles should underly the attitude
of
the law to the
home? The attitude
of
the general public to this can be seen
from the survey into matrimonial property undertaken by the Office
*
For
example, under the Matrimonial Homes Act
1967,
as
regards occupation
rights.
2
As
where its ownership is in dispute, see Viscount Dilhorne in
Gissing
v.
Cissing
[1970]
2
All
E.R.
780,
785,
and Bagnall
J.
in
Cowcher
v.
Cowcher
[1972] 1
All
E.R.
943, 948.
a
Counce
v.
Caunce
"691
1
All
E.R.
722,
where
a
bank granting
a
mortgage
to
a
husband who was legal owner
of
the home was not fixed with notice
of
a
wife's equitable interest in the property by reason
of
her residence in the home.
Under the doctrine
of
Hunt
v.
Luck
(1902) 1
Ch.
428
such a mortgagee might
be fixed with notice
of
any interest in the property held by
"
a
stranger
"
in
residence.
As
John Eekelar has written:
"
It
is difficult to find enthusiasm
for
a
law according to which the holding of the married status not
only
fails
to achieve security
of
occupation
in
relation to dealings with it but is
a
pos,itive disadvantage to the person concerned."
(Family Security
and
Family
Breakdown
(1971),
p.
87.)
The issue
of
ownership had
to
be decided first before the question
of
the exercise of the
court's discretion under the Matrimonial Proceedings and Property Act
1970,
8.
4
could be considered.
4
See
Cowcher
V.
Cowcher
[1972] 1
All
E.R.
943
as
an example.
See note in
(1372) 35
M.L.R.
547.
345
VOL.
86
(4)
1
346
THE MODERN
LAW
REVIEW
VOL.
36
of Population Censuses and Surveys on behalf
of
the Law Commis-
si~n.~
Of
all married couples surveyed,
88
per cent. owned
or
rented their homes in their joint names, and
of
owner occupiers
alone,
52
per cent. owned their homes in joint names.'
It
is
also clear that of the remaining
48
per cent.
of
cases where homes
are owned, although legal title is vested in the husband,
or
wife,
alone,' the home in the majority
of
cases is held in law on trust
for sale
for
both spouses as
87
per cent. of couples
thought
of
the
home as belonging to them both and in fact
79
per cent. of wives
considered that they had contributed towards the home.g
It
is
also clear that co-ownership is increasing. Of those homes bought
by married persons in the
1970s, 74
per cent. were jointly owned,
whereas the figure was
57
per cent. of those bought in the
1960~.'~
Finally,
91
per cent. of husbands and
94
per cent. of wives agreed
that the home and its contents should be jointly owned irrespective
of who paid
for
it."
So
it is clear that the general public consider
that the matrimonial home should not be dealt with simply as any
other piece
of
property, but that its matrimonial character should
be recognised.
For
what reasons? Unfortunately the survey did
not specifically ask the
91
per cent. and
94
per cent. of husbands
and wives why they supported joint ownership.12 Such a question
was asked of those couples who were joint legal owners
of
the home
and the reason most frequently given was that co-ownership pro-
vided automatic transfer
on
death (given by
51
per cent. of
couples). Only
14
per cent. gave as a reason the security and
protection of both parties.ls
No
mention was made of the security
6
Matrimonial Properly
by
J.
E.
Todd and
L.
M.
Jones.
6
Ibid.,
p.
10.
7
42
per cent. were owned by the husband alone and
5
per cent. by the wife
(Figures given on p.
76
indicate that
45
per cent. were
H.M.S.O.,
1972.
alone,
ibid.,
p.
10.
owned by husband alone and
3
per cent. by wife alone.)
8
Ibid.,
p.
11.
9
Ibid.,
p.
28.
Wherever two
or
more peraons have
a
joint interest in possession
in land, that interest takes effect in law as
a
trust
for
sale.
The complexities
of this legal concept are not relevant to the purposes
of
this article. The
effect of the trust
for
sale is that when the house is no longer used
as
a
matrimonial home, it must be sold, if either spouse desires this, and
each
spouse haa a legal interest in the proceeds of sale.
A
trust
for
sale
arises
both where the spouses are joint
legal
owners, and
also
where one spouse is
the legal owner but the other
has
a
beneficial interest in the home because
of
his
or
her contributions
to
the purchase price. (See
Emmet
on
Title
(15th ed.),
p.
389;
Bevan
&
Taylor
(1966) 30
Conv.
364, 363.)
10
Ibid.,
p.
79.
11
Ibid.,
p.
30.
12
They did
ask
whether joint ownership should mean that
a
wife should be jointly
responsible
for
mortgage, rates, etc. and
also
the reason for answers.
Of
those who thought
a
wife should be financially responsible
(41
per cent.
husbands,
43
per cent. wives),
63
per cent.
of
husbands and
60
per cent. of
wives considered marriage was
a
partnership and reaponsibilities should be
shared.
1s
Ibid.,
p.
11.
Other reasons were
a
belief in the jointness of marriage
(30
per
cent.) contribution by both spouses
(25
per cent.), death duty advantages
(25
per cent.) professional advice
(14
per cent.).
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