Windeler v Whitehall
| Jurisdiction | England & Wales |
| Judgment Date | 12 May 1989 |
| Date | 1990 |
| Court | Chancery Division |
MILLETT, J
Property – unmarried couple living together as husband and wife – man purchasing property in his own name and setting up in business – woman making no financial contribution to purchase price or household expenses and not working in or for the business – whether she could have beneficial interest in property or business.
The plaintiff, a single woman, moved into the defendant's house in August 1974 and became his mistress. The defendant wanted the plaintiff to marry him but she did not wish to do so, and continued to have relationships with other men. In July 1975 the parties set up home together as husband and wife, but the plaintiff still refused to marry the defendant. The plaintiff took over the running of the defendant's house and acted as hostess when entertaining at home. In 1976 the defendant left the agency where he was employed and set up in business with a partner. In the Spring of 1979 the defendant bought a larger house. The plaintiff made no financial contribution to the purchase. In June 1979 the defendant made a will leaving his residuary estate to the plaintiff. The relationship deteriorated in the early 1980s and in 1984 it came to an end. Throughout the relationship the plaintiff never worked or earned any money. The defendant gave her cash as and when she needed it.
The plaintiff claimed a share in the house in which she had lived with the defendant and a share in his business.
Held – dismissing the claim: As the parties were never married, the plaintiff had to show that in equity she was a part owner of the house and business. This depended upon the intention of the parties which could be proved directly or inferred from their conduct. There was no direct evidence of any common intention that the plaintiff should have an interest in the house or the business. Nor was there any conduct which gave rise to the inference that it was the parties' intention that the plaintiff should be a part owner of the house or business. So far as the house was concerned, the mere fact that the parties lived together was no indication that they thereby intended to alter the property rights of either of them. There was nothing which was substantial or significant referable to the defendant's acquisition of the property and nothing to relieve him of any significant expenditure or to add to the capital value of the house: Gissing v Gissing [1971] AC 886 and Burns v Burns [1984] Ch 317 followed. The will made by the defendant in June 1979 leaving his residuary estate to the plaintiff was not evidence which supported an intention that she should have an interest in the house. It was a recognition of some moral obligation at that time on his part to provide for her if he should die unexpectedly and while circumstances remained the same. There was no evidence that he had promised to
[1990] FCR 268 at 269
leave the property to her if she continued to live with him and no evidence that she believed that whatever happened she would inherit his property or the house and that he had encouraged her in that belief. In any event, she did not stay with him after 1984 so even if she had been encouraged to believe that she would inherit property from him if she should continue to live with him until he died, she herself destroyed the contingency on which her claim depended: Re Basham (Deceased) [1987] 1 All ER 405 distinguished. So far as the business was concerned, the suggestion that the parties built up the business jointly was ridiculous. What the plaintiff did was not work for which the defendant would have paid anyone to do in any circumstances whatever. The plaintiff had done nothing which would lead anyone to believe she must have been encouraged in the expectation that she had or would have an interest in the business.
David Schmitz for the plaintiff.
Stephen M Miller for the defendant.
MR JUSTICE MILLETT.If this were California, this would be a claim for palimony, but it is England and it is not. English law recognizes neither the term nor the obligation to which it gives effect. In this country a husband has a legal obligation to support his wife even if they are living apart. A man has no legal obligation to support his mistress even if they are living together. Accordingly, the plaintiff does not claim to be supported by the defendant but brings a claim to a proprietary interest in his business and his home.
English courts exercise a statutory jurisdiction to adjust the property rights of married persons on the dissolution of their marriage, but there must be a marriage to dissolve. The courts possess neither a statutory nor an inherent jurisdiction to disturb existing rights of property on the termination of an extra-marital relationship, however long established the relationship and however deserving the claimant.
The plaintiff, Miss Victoria Windeler, claims a share in the house in which she formerly lived with the defendant, Mr Michael Whitehall, and a share in his business as a successful West End theatrical agent. They never married. To succeed, therefore, it is not enough for Miss Windeler to persuade me that she deserves to have such a share. She must satisfy me that she already owns it. In each case legal ownership is vested in Mr Whitehall. Miss Windeler, therefore, must satisfy me that in equity she is a part owner. This depends on the intention of the parties and such intention must be proved directly or inferred from their conduct. But it is important to bear in mind as seems to have been forgotten at various times in this case, that it is to that narrow issue alone that the parties' conduct is relevant.
Now nearly 40, Miss Windeler is an extremely attractive and accomplished young woman. She speaks four languages, three of them fluently. She is intelligent and well educated and comes from a wealthy background. Her mother, now widowed, lives in London but she has (or formerly had) a flat in the French Alps and a villa in Corsica. In 1969, at the age of 19, Miss Windeler was in Italy working for a company which specialized in renting villas to English holidaymakers. She would open the villas at the start of the season and close them at the end and would make the local arrangements which were necessary to staff and supply them. She had an affair with an Italian called Mario, who spoke no English. He was in the boat business and was away for long
[1990] FCR 268 at 270
periods during the year. She was an accomplished sailor and, after one or two seasons with the villa company, she took employment as a member of the crew of a chartered yacht. She met a Mr Richard Loughborough who delivered ocean-going yachts to their owners in the Mediterranean or West Indies or elsewhere in the world. She became his mistress and accompanied him as a member of the crew when he delivered yachts to his customers. She returned to live in London where Mr Loughborough was based, and at one time she had some expectation or hope of helping him to open a yacht delivery agency in London. But he preferred sailing around the world to office work in London, and Miss Windeler could see no future there. They drifted apart.
The parties met in 1974. Miss Windeler was then 24, Mr Whitehall was 34. He was a theatrical agent in the West End. He was working as an employee of the leading agency in London. He was assistant to the joint managing directors and was beginning to establish a reputation for himself. He already represented a number of clients and was building up his own client base within the agency. He was being groomed for higher things and the possibility of a directorship was held out to him. But the firm amalgamated with a large United States agency and Mr Whitehall felt that he had slipped a rung or two down the ladder. He began to think of setting up on his own and to look for a suitable partner.
He was in the process of divorcing his first wife and was living at 53 Lillian Road, Barnes, a small two bedroomed house which he owned. He had bought it in 1969 with money left to him by his grandfather and without the assistance of a mortgage, though he did subsequently raise some capital on it by mortgage. It was in own sole name and he had never put it in his first wife's name.
Miss Windeler moved into 53 Lillian Road in August 1974 and became Mr Whitehall's mistress. He was completely bowled over by her. He wanted her to settle down with him but she had not yet sorted herself out or made her mind up about her future. She did not even unpack. They both continued to have other relationships. Mr Whitehall had a current girlfriend, though their relationship was coming to an end. Miss Windeler was still seeing a boyfriend, a Mr Colquhoun.
At the beginning of November 1974 Miss Windeler left for an eight week trip to Argentina with Mr Colquhoun. Many of her friends who knew her well warned Mr Whitehall that she would not return to him. He desperately hoped that she would. By now he was very much in love with her, though I think he realized the dangers and knew that he was playing with fire. He had no illusions about her. He regarded her as thoroughly spoilt and knew that she was not yet ready to settle down, but he hoped that she would be able to do so. In fact she returned to the house at Christmas. She still did not settle down.
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