Tarr v Tarr
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Viscount Dilhorne,Lord Pearson,Lord Cross of Chelsea,Lord Salmon |
| Judgment Date | 26 April 1972 |
| Judgment citation (vLex) | [1972] UKHL J0426-3 |
| Date | 26 April 1972 |
| Court | House of Lords |
[1972] UKHL J0426-3
House of Lords
Lord Wilberforce
Viscount Dilhorne
Lord Pearson
Lord Cross of Chelsea
Lord Salmon
Upon Report from the Appellate Committee, to whom was referred the Cause Tarr (A.P.) against Tarr (A.P.), that the Committee had heard Counsel on Tuesday the 7th day of March last, upon the Petition and Appeal of Anthony Denzil Tarr (Assisted Person) of 102, Priory, Wellington, in the County of Somerset praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 14th of December 1970, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Gladys Eileen Tarr (Assisted Person), lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 14th day of December 1970 complained of in the said Appeal, be, and the same is hereby, Set Aside, and that the Judgment of His Honour Judge Paton of the 6th day of July 1970 thereby Discharged, be, and the same is hereby, Restored: And it is also further Ordered, That the Costs of the Appellant and of the Respondent in this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I have had the benefit of reading in advance the opinion prepared by my noble and learned friend, Lord Pearson. I agree with it and would allow the appeal.
My Lords,
I agree with my noble and learned friend, Lord Pearson, that this appeal should be allowed and the judgment of the County Court restored and with his reasons for that conclusion.
By s.7 of the Matrimonial Homes Act, 1967, the court is given power, where a spouse is entitled to occupy a dwelling house by virtue of a tenancy to which the Rent Acts apply or by virtue of a statutory tenancy and the marriage has been dissolved by divorce or a decree of nullity, to order that that spouse's estate or interest in the dwelling house shall be transferred to his or her former spouse or, if there is a statutory tenancy, that the former spouse shall be deemed to be the statutory tenant.
So in certain circumstances the Act does provide that a spouse can be deprived of his or her legal rights to occupy a dwelling house.
S.7(7) declares that the court's power to do so under s.7 is in addition to the powers conferred by ss.l and 2 of the Act. If under s. 1(2) the property-owning spouse could be deprived of his right to occupy the premises, it would not be necessary to provide this additional power, and the fact that it is given lends, in my view, further support to the conclusion that s.1(2) does not give power to prohibit the exercise by the property-owning spouse of his or her right to occupy the dwelling house.
My Lords,
This appeal raises a short but important question as to the construction of the words in section 1 subsection (2) of the Matrimonial Homes Act, 1967, which empower the court to make an order "regulating the exercise by either spouse of the right to occupy the dwelling house". Do these words in conjunction with subsection (4) empower the court to make an order wholly prohibiting a spouse from exercising his or her right to occupy the dwelling house for a period specified in the order or until further order?
The parties were married on the 16th June, 1956, and they have a son born on the 24th June, 1957. In 1957 the Urban District Council of Wellington in Somerset granted to the Appellant, who is the husband, a periodic tenancy of a small council house in Wellington. That is the house in which the parties and their son have lived and are still living. On the 16th March, 1969, the Respondent, who is the wife, made a complaint against the Appellant under section 1 of the Matrimonial Proceedings (Magistrates Courts) Act, 1960, alleging persistent cruelty. Initially the complaint was dismissed, but on appeal the Divisional Court ordered a retrial before different justices, and on the re-trial the complaint was found proved and it was ordered that the Respondent be no longer bound to cohabit with the Appellant. Since then the parties, though both living in the house, have not cohabited together as man and wife.
On the 6th March, 1970, the Appellant's solicitors wrote to the Respondent's solicitors saying that she must leave the house and giving her a fortnight to find other accommodation. The Respondent then applied to the Taunton County Court under section 1 of the Matrimonial Homes Act, 1967, for an order which would ( inter alia)(1) declare that the Respondent was by virtue of section 1 of the Act entitled to occupy the house (2) order the Appellant to vacate the house within seven days and not re-enter it without leave of the court. In her grounds of application paragraphs 5 and 6 were as follows:
"(5) I find that in view of my husband's continuing physical cruelty I cannot be expected to remain in the same house as him any longer. I have no other house to go to as I work in Wellington and my son also attends school here.
(6) The [Appellant], who is presently unemployed, has parents living in Wellington and it would be possible for him to reside at their house."
The Appellant in his affidavit in answer to the application admitted that he was unemployed but otherwise denied those paragraphs 5 and 6. He accepted that the Respondent was entitled to reside at the house and was protected from being evicted under the Act of 1967. He denied that she was entitled to the other relief claimed on the grounds that the court had no jurisdiction.
The application was heard by Mr. Registrar Ligertwood. He granted the declaration that the Respondent was entitled to occupy the house, but refused to order the Appellant to vacate the house, holding that he had no jurisdiction under section 1 of the Act of 1967 to make such an order. On the Respondent's appeal against the refusal to order the Appellant to vacate the house, his Honour Judge Paton affirmed the decision of the Registrar. He said:
"This appeal raises a question of construction and although it involves a point within narrow limits it is nevertheless a difficult one. Certainly my first impression of the use of the word 'regulating' (section 1(2) Matrimonial Homes Act. 1967.) is that it does not include the forbidding or stopping of the exercise of a spouse's right to occupy a dwellinghouse. Had Parliament wished to do that, it would not have been too difficult to do so in reasonably plain language. But this is my first impression. Can 'regulating' be construed to the extent of stopping the entire exercise of the right to occupy? I accept that the decision Maynard v. Maynard [1969] 1 All.E.R. 1 can be said to be obiter. On the other hand in that case, as I have already pointed out, the matter was fully argued by experienced counsel and I think that what the learned judge concluded was quite clear. He clearly concluded that regulating meant what it said, namely, regulating and not stopping. That being so, this authority has great persuasive value, and I feel I ought to follow it unless I take the view that it is clearly wrong.… In my view the Registrar was right in holding that he had no jurisdiction to make an order excluding the husband from the matrimonial home."
The learned judge added this:
"This point is bound to arise in a great number of cases as it is very likely that spouses between whom differences have arisen are living under the same roof in circumstances where, because of the size of the accommodation, it is really only practicable to exclude one spouse from the home. Accordingly I do not know if there is anything which I can do to facilitate an appeal, but if there is I can say that I think that this is a point which ought to be decided."
That judgment puts clearly the two sides of the case. On the one hand, regulating the exercise of a right of occupation would not naturally include entirely stopping the exercise of the right. On the other hand, without expressing any view of the merits in the present case, one can see that there might be cases in which there would be justified complaints against the property-owning spouse (the spouse having the title to possession of the house) and it might seem advantageous for the court to have a power to exclude him or her from the house until further order.
Maynard v. Maynard is now reported in the Law Reports [1969] p. 88, and the relevant passage in the speech of counsel for the Queen's Proctor as amicus curiae is at pp. 95-96, and the relevant passage in the judgment is at pp. 100-101.
On the appeal to the Court of Appeal, they unanimously held that under section 1(2) of the Act of 1967 there is power for the court to make an order excluding the property-owning spouse from the dwellinghouse for a limited period or until further order, and accordingly they allowed the appeal and remitted the matter to the County Court judge, for determination in the light of their judgment. Lord Denning said:
"Counsel for the wife admits that regulation does not warrant an absolute prohibition, but says that it does warrant a partial prohibition in space or in time. It is a nice point of construction, but I think counsel for the wife is right. I think that in this context the word 'regulating' should be...
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