Suttill v Graham
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP,LORD JUSTICE ORMROD,LORD JUSTICE BRIDGE |
| Judgment Date | 06 April 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0406-3 |
| Date | 06 April 1977 |
| Court | Court of Appeal (Civil Division) |
[1977] EWCA Civ J0406-3
In The Supreme Court of Judicature
Court of Appeal
(Appeal by husband from Order His Honour Judge Forrest, Bristol County Court, April 13, 1976.)
Lord Justice Stamp
Lord Justice Ormrod and
Lord Justice Bridge
MISS C.E. HAILSTONE for MR D.H. FLETCHER, (instructed by Messrs Rutland & Crauford, Agents for Messrs. Dolmans of Bristol), appeared on behalf of the Appellant (Husband)
This Is an appeal by a former husband from an order of His Honour Judge Forrest sitting at Bristol on the 13th April, 1976, on an application by the former wife under the Married Women's Property Act 1882, as amended, and the Matrimonial Proceedings and Property Act 1970. The application related to the former matrimonial home, known as 10 Court Orchard, Wotton-under-Edge, Gloucestershire, and other very minor Items of property. By the order under appeal it was ordered that the wife was entitled to recover the sum of £3,789 from the husband in respect of one half share of the value of 10 Court Orchard; that the husband should pay that sum to the wife by one instalment of £1,500 within six months of the order, and the balance within two years thereafter; that should the husband default on the payment of either sum on the due date 10 Court Orchard should be sold forthwith; and that upon payment of the total sum 10 Court Orchard should be transferred to the husband.
The relevant facts can be very shortly stated. The parties were married on the 5th January, 1963. There were no children. By July, 1969, the marriage had run into difficulties, and in July of that year the husband left the then matrimonial home at Thornfield Close, Stockton-on-Tees. In April, 1970, the house in Thornfield Close was sold and the proceeds divided between the parties. The wife with her share of the proceeds paid a deposit for the purchase of a property for herself at 42 Carmel Gardens, Norton, Teeside.
On the 11th June, 1970, there was a reconciliation. No. 42 Carmel Gardens was sold, and 10 Court Orchard was purchased as the matrimonial home. No.10 Court Orchard was conveyed to the partiesjointly. The purchase price was £4,500. Of that sum £3,700 was advanced on mortgage. It is not necessary to say more about that purchase, because it is common ground that the parties became beneficially entitled to the property in equal shares. They moved in October, 1970. On the 9th March 1971, the wife left the husband.
On the 10th August, 1971, the husband presented a petition for divorce based on the wife's adultery. He obtained a decreenisi on the 26th January, 1972, and on the 27th November, 1972, the decree was made absolute. Both parties have remarried.
On the 23rd March, 1973, the wife applied under the Married Women's property Act 1882 and the Matrimonial Proceedings and Property Act 1970 for a declaration that she was entitled to half the beneficial interest in Court Orchard and for an order for sale, and declarations in respect of minor matters with which the court is not concerned. The husband was then, and still is, living at 10 Court Orchard. The effect of the order under appeal was that he should buy the wife's interest.
The parties had agreed at the hearing that the value of the house was £10,700. The mortgage had been reduced from its original figure of £3,700 to 3,526, leaving an equity of £7,174, half of which is £3,587. That was the amount claimed by the wife at the hearing before the judge. The husband had throughout the period from the 9th March, 1971, paid the instalments payable under the mortgage. So far as those payments by the husband operated to reduce the principle sum payable under the mortgage, they had operated to Increase pro tanto the value of the equity, and the judge rightly held that the husband in the computation of the amountpayable to the wife for her half share should have credit for half the amount of those payments. The judge, In awarding the wife £3,789, gave effect to this adjustment and to other adjustments made necessary by his decision on the minor matters already referred to.
The payments made by the husband between the 9th March, 1970, and the date of the order under appeal comprised, and indeed were made up for the most part of Interest on the capital sum for the time being outstanding under the mortgage. To the extent that the payments comprised payments of interest they in no way served to increase the value of the equity; but it was nevertheless the husband's case In the court below and in this court that he ought to have credit for one half of the amount so paid. He quantifies that one half at £1,083, and on this appeal asks that the sum of £3,789 awarded to the wife be reduced by that amount.
It must be emphasised at this point that this is not a case where the husband, nor for that matter the wife, is claiming in the divorce suit ancillary relief in the form of a property adjustment order or lump sum payment. The matter has throughout been dealt with under the machinery laid down In the Married Women's Property Act 1882 as amended. Accordingly it would be open to the wife, who was not represented and did not appear on this appeal, to submit, first, that applying Pettit -v- Pettit (1970 A.C.p.777 and Gissing -v- Gissing (1971 A.C. p.886), the rights of the parties must be judged on general principles in considering questions of title to property; and second, that applying those principles a beneficiary entitled to an equal share In equity of property of which he is a trustee, and which he himself occupied, Is to becharged with at least an occupation rent; so that if as here he seeks to charge his co-beneficiary trustee with half the outgoings he should be charged with half the occupation rent.
That is not precisely the way In which such a situation has been approached in the cases to which...
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