Williams (J. W.) v Williams (M. A.)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROSKILL,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 07 May 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0507-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 1976 |
| Docket Number | 1974 W No. 1097 |
[1976] EWCA Civ J0507-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice Chancery Division Group B (Mr. Justice Foster)
The Master of the Rolls
(Lord Denning)
Lord Justice Roskill
and
Lord Justice Geoffrey Lane
In the Matter of The Statutory Trusts for sale arising out of the transfer dated the 6th April 1970 of the land known as and being 96, Blacklands Lane, East Malling in the county of Kent to John Williams and Margaret Anne Williams
And In the Matter of the Law of Property Act 1925
And In the Matter of the Trustee Act 1925
MR. ROGER HENDERSON (instructed by Messrs. Gregory Rowcliffe & Co., Solicitors, London, agents for Messrs. Argles & Court, Solicitors Maidstone) appeared on behalf of the Defendant (Appelant).
THE PLAINTIFF (Respondent) appeared in person.
The parties were married in 1950. They have four children, all boys, the eldest 23, the youngest 13.
The husband lived and worked for many years as a mining engineer in Africa. His wife was out there with him. The boys were sent home to boarding school here in England. They managed to save some money out of the husband's earnings.
In April 1970 they bought a house in joint names 96, Blacklands Lane, East Mailing, in Kent. There is no dispute that in equity they became tenants in common in equal shares holding on the statutory trusts for sale. The price was £7,275, of which £3,000 was advanced on mortgage. The rest came from the husband's savings.
After the house was purchased the husband went back to Africa for four or five months. He returned in September 1970. Then the marriage broke down. The wife petitioned for divorce on the ground of cruelty. It was not contested. The divorce was made absolute in November 1971. The position then was that the wife was living in the house and bringing up the four sons. The husband had moved a few miles away to Maidstone, where he had obtained work.
18 months later, on 6th June 1973, the husband took out a summons under Section 30 of the Law of Property Act 1925, asking for the house to be sold and for his half share to be made available to him. That is the only legal proceeding that has been before the courts.
Two years later, on 13th June 1975, the summons was heard by Mr. Justice Foster. The judge dealt with it according to the old law of trusts. There was a trust for sale with power to postpone sale. He put the argument for the wife: "It is said that I should postpone the sale so that he" - he is referring to the youngest boy, who was then 12 years of age - "can remain in the house and attend the school which he is now attending, andhe wants to stay at that school and not move to another. Whether that would be the result of a sale one does not know, because one does not know what alternative accommodation the defendant" - that is, the wife - "will have".
Then he put the argument for the husband: "But what I must look at is this: the whole of the original £7,000 was produced by the plaintiff to purchase this property. He has had nothing out of the property since he left it in December 1970, so that for nearly five years all the capital which he possesses in the world has been tied up in this property… I for my part cannot see why the plaintiff must put up with having the only capital which he ever produced further tied up after so long a period as four years…".
So he ordered a sale in order that the husband should have his money even though it meant that the wife would have to leave. That is the old approach which was taken in Jones v. Challender in (1961) 1 Queen's Bench when Lord Justice Devlin said on page 183: "The position is the same if the marriage had ended by divorce, for the court is not, under Section 30, concerned with the reasons for the ending of the marriage or the rights and wrongs of it. It can only take note that the object of the trust, so far as it required the preservation of the realty, has been fulfilled". A similar approach is taken in the case of Burke v. Burke. (1974) 1 Weekly Law Reports, where at page 1017 Lord Justice Buckley said: "It is not, I think, right to treat this case as though the husband was obliged to such provision for his children by agreeing to retain the property unsold… the trust for sale is the primary provision applicable to this property".
I must say that that approach is now out-dated. When judges are dealing with the matrimonial home, they nowadays havegreat regard to the fact that the house is bought as a home in which the family is to be brought up. It is not treated as property to be sold nor as an investment to be realised for cash. That was emphasised by this court in the recent case of Brown v. Pritchard in (1975) 1 Weekly Law Reports, page 1366. The court in executing the trust should regard the primary object as being to provide a home and not a sale. Steps should be taken to preserve it as a home for the remaining partner and children, but giving the outgoing partner such compensation, by way of a charge or being bought out, as is reasonable in the circumstances.
It seems to me that in this case the judge was in error in applying the old approach. He did not give proper effect to the modern view, which is to have...
To continue reading
Request your trial
-
R v Rushmoor Borough Council ex parte Barrett and Barrett
...with the object of section 24 of the 1973 Act. 15 The matter came before this court for decision in the case of Williams v. Williams (1976) Ch. 278 and, in the leading judgment in the case, Lord Denning M.R. pointed out that the object of the 1973 Act in relation to jointly owned property w......
-
Re Evers' Trust
...Jones -v- Challenger (supra). Moreover, it is now supported by a dictum of Lord Denning Master of the Roils in Williams -v- Williams (1976) Chancery 278 at page 285F: "The court, in executing the trust should regard the primary object as being to provide a home and not a sale". 12 This appr......
-
Re A; A v A
...[1998] 2 FLR 310, CA. Williams & Glyns Bank Ltd v Boland [1981] AC 487, [1980] 2 All ER 408, [1980] 3 WLR 138, HL. Williams v Williams [1976] Ch 278, [1977] 1 All ER 28, [1976] 3 WLR 494, ApplicationsCustoms and Excise, applied to the Administrative Court under the Drug Trafficking Act 1994......
-
Bernard v Josephs
...(1971) 115 Solicitors Journal 444 (C.A.), Hazell v. Hazell (1972) 1 Weekly Law Reports 301 (C.A.) and Williams v. Williams (1976) 1 Chancery 278 (C.A.). In relation to unmarried couples the main decisions are Cooke v. Head (1972) 1 Weekly Law Reports 518 (C.A.), Richards v. Dove (1974) 1 Al......
-
The Meaning of Home: A Chimerical Concept or a Legal Challenge?
...But when the purpose ofthe trust comes to an end the house should be sold.’; Re Ever’s Trust [1980] 1 W.L.R.1327; Williams v. Williams [1976] Ch. 278, at 285, where the Court of Appeal statedthat in the exercise of the section 30 LPA discretion, the court ‘should regard theprimary object as......