A Wife's Right To Sell The Former Matrimonial Home
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00646.x |
| Date | 01 November 1960 |
| Author | D. G. Valentine |
| Published date | 01 November 1960 |
Nov.
1960
NOTES
OF
CASES
708
decide such issues and
in
practice
it
will often be that best
versed
in
the law to be applied.”
l8
In the event Karminski
J.
chose to follow
Casey
v.
Casey
since
it
was a decision of the Court of Appeal and, unlike Collingwood
J.
in
Hill
v.
Hill,
he found himself unable to distinguish
it.
Although
capacity to consummate the marriage is an essential part of the
marriage contract
it
did not in his view affect the validity of the
ceremony and wilful refusal was even more remote from the cere-
mony.lQ In the event he declined to assume jurisdiction.
Obviously these decisions leave many questions unanswered.
The fist problem is to ascertain the precise extent of the authority
of
Casey
v.
Casey.
It
is submitted that
it
is open to the courts to
take the view of either judge.
It
would perhaps have been prefer-
able had Karminski
J.
followed Collingwood
J.
There is after all
doubt as to the scope of the decision in
Casey
v.
Casey
and since
one High Court judge had already pronounced a very well-reasoned
judgment narrowing its scope
it
might be argued that Karminski
J.
should have followed him.
On
the other hand the contradictory
arguments
of
Lord Somervell and Lord MacDermott are both very
cogent.
If
Ross-Smith
v.
Ross-Smith
should go to the Court of
Appeal
it
will be interesting
to
hear the arguments advanced
on
either side; more especially
it
will be of considerable value to have
a statement of the law from that court. Whilst there is scope for
satisfaction in that the Court of Appeal have finally dissociated
themselves from the reasoning in
Inverclyde
v.
Inverclyde
there is
still a lot
of
growth to be removed before we get a final statement
on
the relationship between void and voidable marriages and until
then the jurisdictional question is unlikely to be settled.
J.
A.
ANDREWB.
A WIFE’S RIGHT
TO
SELL
THE
FORMER
MATRIMONIAL
HOME
WHERE a house is jointly purchased by a husband and wife, a trust
for sale is created, the husband and wife being both the trustees
and the beneficiaries.
It
is a basic principle of a trust
for
sale that
the trustees are under a duty to sell, but that they have a power
to postpone that sale which they may exercise provided they are
unanimous.
In
Jones
v.
Challenger,l
a husband and
wife
in
1956
had
bought a ten-year lease of a house. They then lived together
in
the house but the marriage
soon
broke up, the wife left the house
and the husband obtained his divorce in
1959.
Shortly afterwards the wife, now remarried and living elsewhere,
applied to the county court
for
an order under section
30
of the
Law of Property Aat that the husband as a co-trustee should join
18
[1955]
N.I.
1
at pp.
30,
32.
19
[1960]
3
All
E.R.
70
at
p.
74.
1
[l960]
2
W.L.R.
695;
[1960]
2
All
E.R.
785.
VOL.
23
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