Tinker v Tinker

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE CROSS
Judgment Date03 December 1969
Judgment citation (vLex)[1969] EWCA Civ J1203-6
Date03 December 1969
CourtCourt of Appeal (Civil Division)

In the Matter of The Married Women'S Property Acts 1882 and 1964

and

In The Matter of The Matrimonial Homes Act 1967

Between
George Barrie Tinker
Respondent
and
Barbara Kathleen Tinker
Appellant

[1969] EWCA Civ J1203-6

Before

The Master of the Rolls (Lord Denning),

Lord Justice Salmon and

Lord Justice Cross.

In The Supreme Court of Judicature

Court of Appeal

Appeal by wife from Order made by Mr. Registrar Compton Miller on 2nd April, 1969.

Mr. ROSS MONROE (instructed by Messrs. Gregory Rowcliffe & Co.) appeared on behalf of the appellant wife.

Mr. DEREK WHEATLEY (instructed by Messrs. Pritchard Englefield Leader Henderson) appeared on behalf of the respondent husband.

THE MASTER OF THE ROLLS
1

We need not trouble you, Mr. Ross Monroe.

2

In this case Mr. and Mrs. Tinker were married on the 23rd September, 1955. They have two children, daughters, who are now aged 11 and 7 years. There are divorce proceedings between them. We are conoerned to-day with the beneficial ownership of a house in Cornwall.

3

The parties originally had their home in Cheshire. It was in the husband's name alone. In 1967 the husband was minded to move with the whole family to Cornwall. He bought a garage business near Bodmin in his own name. It cost some £32,500. He also entered into negotiations to purchase a desirable residence for himself and his family. It is called Halgover House. At first he thought of having it put into his own name. But, on consulting his solicitor, he decided that it should be put into his wife's name. The reason was so that, in case his garage business was; not a success, his creditors should not be sale to take it. The contract was drawn up on the 11th November, 1967. It was in the wife's name. So was the conveyance.

4

A few weeks later the marriage broke up. The wife stayed in Cheshire. The husband in Cornwall. The wife first claimed the 1 house in Cheshire as hers. The findings of the Registrar negatived that claim. Mr. Ross Monroe did not press the appeal as to it. It was clearly unsustainable.

5

The wife next claimed the house near Bodmin as hers, because it was put into her name. The Registrar dismissed her claim to — it. He found that the husband was an honest businessman intending and able to honour his financial commitments; that he intended this house to belong to him beneficially; and accordingly that the wife held the house in trust for her husband absolutely. The wife appeals to this Court.

6

The evidence shows clearly that the husband put the house into his wife's name so that it should not be taken by his creditors. In his evidence he said: "In October 1967 not true that I gave the Halgover House to my wife. Reason put in wife's name was because I had never previously been in a garage businesslack of experience is always a risk. I was advised that, should the business fail, the house would be taken as part of the assets of the business. Recommended therefore house should be put in wife's name. This was explained to my wife the Mr. Chisholm" — that is the solicitor — "in his office." If further evidence is needed, it is in his own affidavit, where he said; "The only reason Halgover House was put into the Respondent's name was as a matter of caution in case the business venture should wholly fail and it should be taken that this house was part of the business assets, we were both advised about this." After the differences arose, the husband's solicitors wrote and said; "…….we have learnt today that Mrs. Tinker is the owner of a residence in Cornwall…….".

7

So it is plain that the husband had the house put into his wife's name so as to avoid any risk of it being taken by his creditors in case his business was not a success. what is the result in law? In Gascoigne v. Gascoigne (1918 1 K.B. 223) It was held that, when a husband put a house in his wife's name so as to avoid it being taken by his creditors, the house belonged to the wife. The husband could not be heard to say that it belonged to him, because he could not be allowed to take advantage of his own dishonesty. That case was applied in ( Re Emery's Investment Trusts 1959 1 Ch. 410); and also in McEvoy V. Belfast Banking, Co. Ltd. (1934 Northern Ireland Law Reports at page 67). We were invited by Mr. Wheatley to overrule those decisions. But in my opinion they are good law.

8

Then Mr. Wheatley said that Gascoigne v. Gascoigne is distinguishable, because there the husband was dishonest, whereas here the Registrar has found that the husband was honest. Mr. Wheatley relied in this regard on Davies v. Otty (1865) 35 Beavan 208. There a man's wife had left him ten years ago. He justifiably believed she was dead and married another woman. Then he was told that his first wife was still alive. Being fearful that he might be charged with bigamy, he conveyed property to the defendant on the distinct understanding that it was "tobe done away with when the unpleasantness was over". He was, of course, quite innocent of bigamy. The Court ordered the defendant to re-convey the property to him. In that case it is obvious that the defendant was trustee for the plaintiff who throughout was acting quite honestly and quite consistently.

9

Accepting that in the present case the defendant was honest — he acted, he said, on the advice of his solicitor — nevertheless I do not think he can claim that the house belongs to him. The solicitor did not give evidence. But the only proper advice that he could give was; "In order to avoid the house being taken by your creditors, you can put it into your wife's name; but remember that, if you do, it is your wife's and you cannot go back on it".

10

But, whether the solicitor gave that advice or not, I am quite clear that the husband cannot have it both ways. So he is on the horns of a dilemma. He cannot say that...

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101 cases
  • Tinsley v Milligan
    • United Kingdom
    • House of Lords
    • 24 June 1993
    ...to be well recognised in a number of authorities; but reliance was placed in particular on Gascoigne v. Gascoigne [1918] 1 K.B. 223 and Tinker v. Tinker [1970] P. 136, both decisions of the Court of Appeal. It was this line of authority which ultimately persuaded Ralph Gibson L.J., in his......
  • Lowson v Coombes
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    • Court of Appeal (Civil Division)
    • 26 November 1998
    ...of a house in which they formerly lived together. The appeal has made it necessary for us to review the decisions of this court in Tinker v. Tinker [1970] P. 136 and of Sir Anthony Plowman V-C in Cantor v. Cox (1975) 239 EG 121 in the light of the decision of the House of Lords in Tinsley v......
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    • High Court (Singapore)
    • 9 January 2004
    ...argued that a presumption of advancement but not of a resulting trust would arise and would not be rebutted, citing Tinker v Tinker [1970] 1 All ER 540. He relied on the following facts to support his (a) CSY and LMK signed the conveyance from the outset; (b) copies of correspondence relati......
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    • Malaysia
    • High Court (Malaysia)
    • 1 January 2016
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