The Deserted Wife's Status
| Author | Jeremy S. Williams |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb01102.x |
| Published date | 01 January 1966 |
| Date | 01 January 1966 |
74
TIFE
MODERN
LAW
REVIEW
VOL.
29
TEE DESERTED WIFE’S
STATUEI
THE ultimate decision in
National Provincial Bank
v.
Ainsrvorth
1
has
POW
been delivered and the fears of solicitors allayed.
A husband deserted his wife, leaving her in occupation of the
matrimonial home, which belonged to him and which he subse-
quently mortgaged. There was
a
default under the mortgage and
the mortgagee sought possession. Two issues were raised, which
Lord Wilberforce described thus
:
“The general question is whether the respondent,
as
the
deserted wife
of
her husband, the owner of the house, has any
interest
in
or
right over
it
which is capable of binding the bank
as
the proprietor of
a
legal interest in the land. This
is
a
general .question of real property law. The second question
arises out of the fact that the land is registered land.
It
is,
briefly, whether the respondent’s interest,
or
right,
is
an
over-
riding interest.’
If
it
is,
it
may prevail over the legal interest
of the bank even though
it
is not registered
or
indeed capable
of registration
:
if
it
is not,
it
may be overriden by the registered
disposition
in
favour of the bank.”
*
The House of Lords unanimously decided that the rights of
a
deserted wife were purely personal against her husband and did not
bind the land. Their lordships held further that such rights
as
the
deserted wife had were not embraced by section
70
of the Land
Registration Act
1026
since that section dealt only with rights
capable of enduring through different ownerships of the property
concerned.
The House
of
Lords agreed that the wife’s rights flowed
from
her status and not from a licence conferred by the owner of the
property. Lord
Hodson
stated that:
“
To describe
a
wife as
a
licensee, unless that overworked word
is merely used to describe a persop lawfully
on
land and not
a
trespasser, is not only uncomplimentary but inaccurate. She is
not
a
person who needs any licence from her husband to be
where she has
a
right to be
as
a wife.”
a
It
is submitted that the meaning of the word “licensee
”
has
always been simply that he
or
she is there with the express
or
implied consent of the owner, and nothing more. The statement of
Vaughan
C.J.
in
Thomas
v.
Sorrel1
has in this context always been
relied upon:
6c
A dispensation
or
licence properly passeth
no
interest,
nor
alters
or
transfers property
in
any thing, but only makes an
action lawful, which without
it
had been unlawful.”
It
is
now
clear that in relation to land
a
person may
fall
within
one of the following categories
:
owner, licensee, rightful occupant
or
trespasser. The House of Lords have created a new class of persons,
1
[I9651
3
W.L.R.
1; [lo651
2All
E.R.
472.
a
[l965]
3
W.L.R.
1
at
p.
30;
[1965]
2
All
E.R.
472
at
p.
401.
3
[lo651
3
W.L.R.
1
at
pp.
18-14; [lOe6]
2
All
E.R.
472
at
p.
470.
4
(1G73)
Vaugh.
330
at
p.
861.
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