Wilson v Wilson

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date09 Apr 1963
Judgment citation (vLex)[1963] EWCA Civ J0409-2

[1963] EWCA Civ J0409-2

In The Supreme Court of Judicature

Court of Appeal

From The Prorate Divorce & Admiralty Division (Divorce) Mr Registrar Townley Millers


Lord Justice Ormerod

Lord Justice Donovan and

Lord Justice Russell

Doris Mary Wilson
Petitioner Appellant
Leslie Walter Wilson
Kespondent Respondent

MR A.B. EWBANK (instructed by Mr Eric P. Hanney) appeared as Counsel for the Appellant.

MR W.A.B. FORBES (instructed by Messrs Bischoff & Co,) appeared as Counsel for the Respondent.


This is an appeal from a decision of Mr Registrar Townley Millers given on the 9th October, 1962. The learned Registrar was asked to decide an issue under Section 17 of the Married Women's Property Act 1882 as to the disposal of a fund of £.1,001 deposited in a bank as the result of the sale of a bungalow in Colchester known as "Charnwood", which was the matrimonial home of the parties prior to the break up of their marriage. The wife claimed that she was entitled to a half share of the money but was awarded £49 only, and it is against that award that she appeals.


The parties were married on the 4th September, 1948, and there are two children, a girl and a boy, born in 1950 and 1953 respectively. For some years after the marriage the parties lived with the husband's parents but early in 1957 "Charnwood" was bought and conveyed to them in their joint names by a deed dated the 21st February, 1957. The partiee lived at "Charnwood" with their children until July 1959 when the wife left the husband, alleging that he had treated her with cruelty. She filed a petition for divorce on the ground of oruelty on the 3rd February, 1960, aid in December 1962 a decree nisi was granted to her. "Charnwood" was sold on the 31st March 1961 and the proceeds were held jointly by the solicitors to the parties. They are now held by a bank and their proper distribution is the subject of the appeal. The application was made under Section 17 of the Married Women's Property Act 1882 which states that in any question between husband and wife as to the title to or possession of property either party may apply to the Court and the Court may make such order with respect to the property in dispute as it thinks fit.


The conveyance of the 21st February, 1957, was made between the vendor of the first part, the mortgagees of the second part, and the husband and wife, thereinafter called the purchasers, of the third part. After various recitals, the deed witnessed as follows. "The purchasers hereby declare as follows(a) the purchasers shall hold the said property upon trust to sell the same with power to postpone the sale thereof and shall hold the net proceeds of sale and other money applicable as capital and the net rents and profits thereof until sale upon trust for themselves as joint tenants".


The position in law appears to be sufficiently defined, I have referred to the relevant part of Section 17, which is of course the statutory provision governing the matter. The question has arisen, in this and in other cases, whether the words of the section are sufficiently wide to give the Court power to make an order irrespective of any rights which may have accrued to the parties if in the opinion of the Court it is fair and just to do so. A number of authorities have been cited to us, but I think it will be sufficient to refer to two of them only. They are Cobb v. Cobb, 1955, 1 W.L.R., 731 and Hine v. Hine, 1962, 1 W.L.R., 1124. I would refer first of all to a passage from the Judgment of Lord Justice Romer in Cobb v. Cobb. He said) "I know of no power that the Court has under Section 17 to vary agreed or established titles to property. It has power to ascertain the respective rights of husband and wife to disputed property, and frequently has to do so on very little material; but where, as here, the original rights to property are established by the evidence, and those rights have not been varied by subsequent agreement, the Court cannot, in my opinion, under Section 17 vary those rights merely because it thinks that in the light of subsequent events the original agreement was unfair".


In the case of Hine v. Hine Lord Denning, Master of the Rolls, said? "It seems to me that the jurisdiction of the Court over family assets under Section 17 is entirely discretionary. Its discretion transcends all rights, legal or equitable, and enables the Court to make such Order as it thinks fit. This means, as I understand it, that the Court is entitled to make such order as appears to be fair and just in all the circumstances of the case". Later Lord Denning says this on p. 1128: "Twoprinciples have, however, emerged In exercising this discretion. The first is that when you can clearly see that the parties intended that one piece of property or one amount of money should belong to one or the other in any event, that Intention should prevail. The second principle only applies where no such intention appears. I venture to state the principle In the words which I used in Rimroar v. Rimmer. Lord Denning then goes on to cite a passage from his Judgment In Rimmer v. Rimmer which provides for the exercise of the discretion of the Court if the circumstances warrant it. Lord Justice Pearson in his Judgment in the same case said this on p. 11321 "In my judgment, however, the fact that the husband and wife took the property in joint tenancy does not necessarily mean that the husband should have a half Interest in the proceeds of the sale now in contemplation. The parties agreed, expressly or by Implication from the creation of the joint tenancy, that the house should be the matrimonial home and should belong to both of them (technically to each of them in its entirety) and on the death of one it would belong to the other by right of survivorship. They did not, however, make any agreement, or have any common intention, as to what would happen In the event of the marriage breaking up and the property then being sold. That event was outside the contemplation of the parties. The proper division of the proceeds of sale in that eveit is left to be decided by the Court in this application under Section 17".


The principle appears to be that if no clear intention is to be seen that at the time of the conveyance the rights created by the conveyance are to continue in any event, then on the break up of the marriage it would be necessary under Section 17 to determine those rights. If, however, the intention shown or to be inferred was that the rights then passing to the parties respectively should continue in any event, then Section 17 would not give the Court any discretion to disturb them. It is necessary, therefore, to examine the facts from that point of view.


The husband has said and the wife has agreed that one of the factors, although not necessarily the dominant faoter, in the decision to put the house In the names of husband and wife as joint tenants was that the payment of estate duty would be avoided in the event of the death of one of them. That on the face of it would appear to indicate that there was a real transfer of those rights to the spouse in question. But it is doubtful whether that is enough having regard to the decision in Hine v. Hine. where one of the considerations was certainly the avoidance of estate duty. The question remains, however, whether in the particular circumstances of this case and having regard particularly to the provisions of the conveyance, the inferance should be drawn that the rights which were being transferred to the wife were to be hers whatever should happen. This is not a question of presumption. The conveyance and the terms of the declaration are clear. The only question is whether there can be implied from that declaration a transfer to the wife, not only for the duration of the marriage or whilst the house shall be a joint matrimonial home, but in any event. This has not been an easy question to decide and, indeed, it is a matter upon which courts may take different views, but in my judgment the words of the declaration contained in the conveyance leave little doubt that the husband was providing for his wife, whatever circumstances should arise in the future. The purchasers declared that they should hold the net proceeds of the sale as joint tenants. There seems to be no need for such a declaration unless the intention is that the wife's interest should continue in any event. The learned Registrar in coming to his decision felt that he was bound by the Judgments in Hine v. Hine. This means, as I understand it, that he was of the view that the proper inference to be drawn from the facto was that any rights created should subsist only so long as the house in question was the matrimonial home of the parties. 1 have come to a different view as to the inference to be drawn from the conveyance and, therefore, to a different view as to the finaldestination of the moneys which are the balance of fche proceeds of sale. Since preparing this Judgment, I have had an opportunity of reading the one about to be delivered...

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