LORD JUSTICE WALLER: This is an appeal from a decision of Dillon J., given on 1st March, 1982, when he found that the plaintiff, Mrs. Burns, had no interest in the house in which she and the defendant, Mr. Burns, although not married had lived together as man and wife for 17 years.
The parties started living together in the Summer of 1961. At that time the plaintiff was aged 20 earning about £12 a week, as a tailor. She left the accommodation with her parents and went to live with the defendant in a rented flat where the boy was born on 29th April, 1962. The plaintiff was known as Mrs. Burns. In 1963 when she was again pregnant she and the defendant decided to move to a house and the defendant bought the house in July, 1963. It was in his name and he obtained £4,500 out of the total of £4,900 by mortgage. The second child was born on 9th October, 1963. The plaintiff made a statutory declaration of change of name, her passport was in the name of Burns and their friends and acquaintances believed them to be married. The parties lived together until 1980 when the plaintiff left although relations had deteriorated in the last two years. The facts are more fully set out in the judgment of Dillon J. She could not earn any money when the children were small and it was not until 1975 that she made any appreciable money. When she did earn money she did not keep a separate account, it went in with her housekeeping allowance from the defendant. She did purchase certain fixtures and fittings for the house and material for sheets and bed covers, and so on, and also she did some decorating including wallpapering the house completely in 1977 or 1978. She also bought certain consumer durable goods such as a dishwasher, washing machine, tumble drier, a bed and some other furniture. The appellant submitted that these facts alone produced a resulting trust so that the appellant is entitled to a share in the equity of the house and that the courts should recognise the changes in custom which have taken place over the past 10 or 20 years.
We have had to consider this case in the light of Pettit v. Pettit (1970) AC 777, a case concerning the interpretation of Section 17 of the Married Women's Property Act, 1882, and Gissing v. Gissing (1971) AC 886, a case concerning the application of Section 53, The Law of Property-Act, 1925. There hare been certain developments since those two cases were decided: (l) The Matrimonial Proceedings and Property Act, 1970, was passed on 29th May, 1970, and came into force on 1st January, 1971, empowering the court to make property adjustment orders. This power was re-enacted in the Matrimonial Causes Act, 1973. Section 24. (2) There has been an increase in the number of decisions involving a man and woman living together without getting married. In Cooke v. Head (1972) 1 WLR 518 the Court of Appeal considered the case of a bungalow built by such a couple and considered what the interests of the woman were as against the man. There was Richards v. Dove (1974) 1 AER 888, a decision of Walton J. against the mistress. Eves v. Eves (1975) 1 WLR 1338 where this court held that there was a constructive trust in favour of the mistress. Brightman J. with whom Browne L.J. agreed, drew the inference that the plaintiff was to have some beneficial interest in return for her labour towards the reparation of a house and she had done considerable physical work when the house was being prepared. See also Tanner v. Tanner (1975) 1 WLR 1346, where this court held that there was a contractual licence to the woman for so long as the children were of school age and reasonably required the accommodation. See also in re Evers Trust (1980) 1 WLH 1327 where dealing with the case of an unmarried couple Ormrod L.J. said: "This is a situation which is occurring much more frequently now than in the past and is a social development of considerable importance with which the courts are now likely to have to deal from time to time", (at 1330A) And there is the case of Hall v. Hall (1982) 3 FLR 379 where Lord Denning M.H. said:
"Then the question arose about the house, 6 Hammonds Close, She claimed a share in the equity. She said that they had lived together for 7 years. The Judge found — and the man agreed — that they would not have been able to make the moves and buy the house except for the fact that this couple had been living together and they had both been earning. Her contribution paid for a great amount of the furniture, equipment and fittings. She also bought a car. And she contributed her earnings towards the housekeeping.
So it is said that she is entitled to a share in the equity of the house: not on the matrimonial law which governs husband and wife, but on the principle of a resulting trust. There have been a number of cases recently in the courts where women in the position of this lady have been given protection to this extent: if a man and a woman have been living together as husband and wife, and the woman has been contributing towards the establishment of the joint household, although the house is in the man's name, there is a resulting trust as a matter of ordinary common justice for her. The two cases in which that principle has been settled are Cooke v Head (1972) 1 WLR 518 and Eves v Eves (1975) 1 WLR 1338 to which I would add the case of Tanner v. Tanner (1975) 1 WLR 1346."
Finally there is the case of Bernard v. Josephs (1982) 1 Ch. 391.
Although there was a difference of judicial opinion in Pettit v. Pettit that case was mainly concerned with Section 17 of the Married Women's Property Act and in the present case we are concerned with two people living together as man and wife for 17 years as if they were married but not legally married, Lord Hodson and Lord Upjohn disagreed with the approach of Lord Reid and Lord Diplock, but I do not read the speech of Lord Morris as going quite so far. In the circumstances of this case I find the observations of both Lord Reid and Lord Diplock in Pettit v. Pettit as helpful. At page 794 Lord Reid said:
"We must first have in mind or decide how far it is proper for the courts to go in adapting or adding to existing law. Whatever views may have prevailed in the last century, I think that it is now widely recognised that it is proper for the courts in appropriate cases to develop or adapt existing rules of the common law to meet new conditions. I 3ay in appropriate cases because I think we ought to recognise a difference between cases where we are dealing with "lawyer's law" and cases where we are dealing with matters which directly affect the lives and interests of large sections of the community and which raise issues which are the subject of public controversy and on which laymen are as well able to decide as are lawyers. On such matters it is not for the courts to proceed on their view of public policy for that would be to encroach on the province of Parliament.
I would therefore refuse to consider whether property belonging to either spouse ought to be regarded as family property for that would be introducing a new conception into English law and not merely developing existing principles. There are systems of law which recognise joint family property or communio bonorum. I am not sure that those principles are very highly regarded in countries where they are in force, but in any case it would be going far beyond the functions of the court to attempt to give effect to them here.
But it is, I think, proper to consider whether, without departing from the principles of the common law, we can give effect to the view that, even where there was in fact no agreement, we can ask the spouses, or reasonable people in their shoes, would have agreed if they had directed their minds to the question of what rights should accrue to the spouse who has contributed to the acquisition or improvement of property owned by the other spouse. There is already a presumption which operates in the absence of evidence as regards money contributed by one spouse towards the acquisition of property by the other spouse. So why should there not be a similar presumption where one spouse has contributed to the improvement of the property of the other? I do not think that it is a very convincing argument to say that, if a stranger makes improvements on the property of another without any agreement or any request by that other that he should do so, he acquires no right. The improvement is made for the common enjoyment of both spouses during the marriage. It would no doubt be different if the one spouse makes the improvement while the other spouse who owns the property is absent and without his or her knowledge or consent. But if the spouse who owns the property acquiesces in the other making the improvement in circumstances where it is reasonable to suppose that they would have agreed to some right being acquired if they had thought about the legal position, I can see nothing contrary to ordinary legal principles in holding that the spouse who makes the improvement has acquired such a right."
And in Gissing v. Gassing, at page 897, Lord Reid summarises the situation in this way: "Returning to the crucial question there is a wide gulf between inferring from the whole conduct of the parties that there probably was an agreement, and imputing to the parties an intention to agree to share even where the evidence gives no ground for such an inference. If the evidence shows that there was no agreement in fact then that excludes any inference that there was an agreement. But it does not exclude an imputation of a deemed intention if the law permits such an imputation. If the law is to be that the court has power to impute such an intention in proper cases then I am content, although I would prefer to reach the same result in a rather different way. But if it were to be held to be the law that it must at least be possible to infer a contemporary agreement in the sense of holding that it is more probable than not there was in fact some such agreement then I could not contemplate the future results of such a decision with equanimity."
Lord Diplock, in Pettit v. Pettit, page 824, said:
"I do not propose to examine in detail the numerous cases decided in the last 20 years and cited in the argument before your Lordships' House in which in the absence of evidence that spouses formed any actual intention as to their respective proprietary rights in a family asset, generally the matrimonial home acquired as a result of their concerted actions, the courts have imputed an intention to them. I adhere to the view which I expressed in Ulrich v. Ulrich and Fenton (1968) 1 WLR. 180, 188-190, in the passage which my noble and learned friend Lord Hodson (ante, p, 8101-D) has already cited at length."
This passage read as follows:
"When these young people pool their savings to buy and equip a home or to acquire any other family asset, they do not think of this as an 'ante-nuptial' or 'post-nuptial' settlement, or give their minds to legalistic technicalities of "advancement1 and 'resulting trusts'. Nor do they normally agree explicitly what their equitable interests in the family asset shall be if death, divorce or separation parts them. Where there is no explicit agreement, the court's first task is to infer from their conduct in relation to the property what their common intention would have been had they put it into words before matrimonial differences arose between them. In the common Case today, of which the present is a typical example, neither party to the marriage has inherited capital, both are earning their living before marriage, and the wife intends to continue to do so until they start having children. They pool their savings to buy a house on mortgage in the husband's name or in joint names and to furnish and equip it as the family home. They meet the expenses of its upkeep and improvement and the payments of instalments on the mortgage out of the family income, to which the wife contributes so long as she is earning. In such a case, the prima facie inference from their conduct is that their common intention is that the house, furniture and equipment should be family assets ..."
And then Lord Diplock went on: "I think it fairly summarises the broad consensus of judicial opinion disclosed by the post-war cases (none of which has reached your Lordships' House), as to the common intentions which, in the absence of evidence of an actual intention to the contrary, are to be imputed to spouses when matrimonial homes are acquired on mortgage as a result of their concerted acts of a kind which are typical of transactions between husband and wife to-day. And I firmly think that broad consensus of judicial opinion is right. The old presumption of advancement and resulting trust are inappropriate to these kinds of transactions, and the fact that the legal estate is conveyed to the wife or to the husband or to both jointly though it may be significant in indicating their actual common intention is not necessarily decisive since it is often influenced by the requirements of the building society which provides the mortgage.
In imputing to them a common intention as to their respective proprietary rights which as fair and reasonable men and women they presumably would have formed had they given their minds to it at the time of the relevant acquisition or improvement of a family asset, the court, it has been suggested, is exercising in another guise a jurisdiction to do what it considers itself to be fair and reasonable in all the circumstances and this does not differ in result from the jurisdiction which Lord Denning, in Appleton v. Appleton (1965) 1 WLR 25, considered was expressly conferred on the court by section 17 of the Married Women's Property Act, 1882.
It is true, as Viscount Radcliffe pointed out in Davis Contractors Ltd. v. Fareham. U.D.C. (1956) AC 696, at p. 728, that when the court imputes to parties an intention upon a matter to which they in fact gave no thought
"In their (sc. the parties) place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than an anthropomorphic conception of justice, is and must be the court itself."
The officious bystander of MacKinnon L.J. (see Shirlaw v. Southern Foundaries (1926) Ltd. (1939) 2 K.B. 206, at p. 227) may pose the question, but the court, not the parties, gives the answer. Nevertheless, there is a significant difference between applying to transactions between husband and wife the general legal technique for imputing intention to the parties, and exercising a discretion such as that which Lord Denning suggested was conferred on the court by section 17 of the Married Women's Property Act, 1882. In applying the general technique the court is directing its attention to what would have been the common intention of the spouses as fair and reasonable husband and wife at the time of the relevant transaction while they were still happily married and not contemplating its breakdown. The family asset might cease to be needed for the common use and enjoyment of themselves and their children without the marriage breaking down at all. The circumstances of the subsequent breakdown and the conduct of the spouse which contributed to it are irrelevant to this inquiry. If these circumstances are such as to call for an adjustment of the spouses' respective proprietary rights which resulted from their previous transactions the court has jurisdiction to make such adjustments under the Matrimonial Causes Act, 1965 (see Ulrich v. Ulrich and Felton (l968) 1 WLR 180). It has no such jurisdiction under section 17 of the Married Women's Property Act, 1882."
While both Lord Reid, at page 7941 and Lord Diplock, at page 825, expressed the view that the doctrine of family property was no part of English Law I do not read the speeches of either of them as ruling out the possibility of applying what Lord Diplock described as the general legal technique for imputing intention to the parties.
In Hall v. Hall this court held that there was a constructive trust. The contributions of the plaintiff in the present case were not as great as they were in Hall v. Hall in financial terms but she had given up her work and was bringing up the two children of the association. When she did earn some money some of it went towards the running of the house and she did purchase the various things that I have mentioned above. On the other hand the fact that the couple lived together for 19 years in this case, of which 17 were in the house, is rather stronger than that case where the total time was one of 7 years. There was, however, a concession made. Dunn L.J. (at page 383) said:
"It was conceded before the judge, and conceded here, that in the events which occurred there was a resulting trust of the third house, 6 Hammonds Close, Totton, in favour of the plaintiff, so that the defendant held that house partly in trust for her. The judge put it in this way: 'The defendant says that he would not have been able to make the moves and buy the homes except for the fact that both were living together and both earning. I accept that she should have some contribution......It is clear that having lived together for nearly 7 years in many respects as husband and wife, pooling their joint resources and the plaintiff applying substantially all her earnings to the housekeeping and having done a good deal of work for nothing, certainly the plaintiff is entitled to a proportion of the equity'".
Lord Reid in the passage I have quoted above (page 794) drew attention to those matters on which courts should not proceed in their view of public policy and those where it is proper to develop or adapt existing rules to meet new conditions. He refused to consider the concept of family property and said that was for Parliament. Parliament did deal with matrimonial property in the Matrimonial Proceedings and Property Act, 1970» which became law in the year following that decision. This case is not covered by matrimonial property legislation nor is it one which could readily be dealt with by legislation. Therefore the facts have to be considered to see whether it is possible to do justice between the parties and more particularly in view of the case of Hall y. Hall. In the passage I have quoted above from Gissing v. Gissing, Lord Reid considered the possibility of imputing a deemed intention. "If the law permits such an imputation" would the facts of the present case justify it? The appellant was living with the respondent as man and wife known to friends and relatives as a married couple but she was not married. The consequence was that she had no statutory protection once the boys had grown up. The relationship lasted 19 years during which time she brought up their two children. She ran the house, even though the contribution to the fabric was minimal. In Hall v. Hall, although the relationship lasted only 7 years and there were no children there was a concession because of the woman's contribution to the housekeeping. During the first 7 years of this relationship the appellant was looking after their children and had had to give up her employment to do so. Save for the concession it is not easy to draw a distinction between the two cases at the end of 7 years and if this be right, in the present case where the relationship continued for a further 12, the case would be very much stronger.
If the law permits it a deemed intention between the parties would surely include some provision to make up for the statutory rights which marriage would have given in the event of a break up.
I have, however, had the advantage of reading in draft the judgments of Pox L.J. and May L.J. and, for the reasons they give, am reluctantly persuaded that the law does not permit this court to impute a deemed intention on the facts of this case.
LORD JUSTICE FOX: The house with which we are concerned in this case, 143 Osidge Lane, Southgate, was purchased in the name of the Defendant and the freehold was conveyed to him absolutely. That was in 1963. If, therefore, the Plaintiff is to establish that she has a beneficial interest in the property she must establish that the Defendant holds the legal estate upon trust to give effect to that interest. That follows from Gissing v. Gissing (1971) AC 995. For present purposes I think that such a trust could only arise (a) by express declaration or agreement or (b) by way of a resulting trust where the claimant has directly provided part of the purchase price or (c) from the common intention of the parties.
In the present case (a) and (b) can be ruled out. There was no express trust of an interest in the property for the benefit of the Plaintiff; and there was no express agreement to create such an interest. And the Plaintiff made no direct contribution to the purchase price. Her case, therefore, must depend upon showing a common intention that she should have a beneficial interest in the property. Whether the trust which would arise in such circumstances is described as implied, constructive or resulting does not greatly matter. If the intention is inferred from the fact that some indirect contribution is made to the purchase price, the term 'resulting trust' is probably not inappropriate. Be that as it may, the basis of such a claim, in any case, is that it would be inequitable for the holder of the legal estate to deny the claimants' right to a beneficial interest.
In determining whether such common intention exists it is, normally, the intention of the parties when the property was purchased that is important. As to that I agree with the observations of Griffith, L.J. in Barnard v. Josephs (1982) Ch 391 at page 404. As I understand it, that does not mean that for the purpose of determining the ultimate shares in the property one looks simply at the factual position as it was at the date of acquisition. It is necessary for the Court to consider all the evidence, including the contributions of the parties, down to the date of separation (which in the case of man and mistress will generally, though not always, be the relevant date). Thus the law proceeds on the basis that there is nothing inherently improbable in the parties acting on the understanding that the woman "should be entitled to a share which was not to be quantified immediately upon the acquisition of the home but should be left to be determined when the mortgage was repaid or the property disposed of on the basis of what would be fair having regard to the total contributions direct or indirect which each spouse had made by that date" (see Gissing v. Gissing (supra) per Lord Diplock at page 909). That approach does not, however, in my view preclude the possibility that while, initially, there was no intention that the claimant should have any interest in the property, circumstances may subsequently arise from which the intention to confer an equitable interest upon the claimant may arise (e.g. the discharge of a mortgage or the effecting of capital improvements to the house at his or her expense). Further, subsequent events may throw light on the initial intention.
Looking at the position at the time of the acquisition of the house in 1963. I see nothing at all to indicate any intention by the parties that the Plaintiff should have an interest .in it. The price of the house was £4,900. Of that, about £4,500. was raised by the Defendant on a mortgage. The mortgage was in his own name; he assumed responsibility for the debt. The balance of the purchase price and the costs of the purchase were paid by the Defendant out of his own moneys. The Plaintiff made no financial contribution; she had nothing to contribute, is to the reason for buying the house the Judge said that he had no doubt that it was an important factor in the decision that the Defendant realised that it was much better use of money to buy an asset — a house — rather than rent a flat (which was what he was doing previously).
It seems to me that at the time of the acquisition of the house nothing occurred between the parties to raise an equity which would prevent the Defendant denying the Plaintiffs claim. She provided no money for the purchase; she assumed no liability in respect of the mortgage; there was no understanding or arrangement that the Plaintiff would go out to work to assist with the family finances; the Defendant did nothing to lead her to change her position in the belief that she would have an interest in the house. It is true that she contemplated living with the Defendant in the house and, no doubt that she would do housekeeping and look after the children. But those facts do not carry with them any implication of a common intention that the Plaintiff should have an interest in the house. Taken by themselves they are simply not strong enough to bear such an implication.
I come then to the position in the years after the house was purchased. I will deal with them under three heads, namely financial contributions; work on the house} and finally housekeeping. There is some overlapping in these categories.
So far as financial contributions are concerned, the Plaintiff's position really did not change during the 1960's. She had no money of her own and could not contribute financially to the household. All the mortgage instalments were paid by the Defendant alone. By the end of the 1960's as a result of qualifying as an instructor in flower arrangement she was able to earn a little by giving lessons in flower arrangement. But as I understand the judgment, the amounts were small particularly since lessons had to be given in the evening with the result that the Plaintiff had to have a baby sitter.
Then in 1972 the Plaintiff took flying lessons and qualified as a pilot of light aircraft in 1973. But that was simply a pastime and neither produced nor was intended to produce any addition to the family budget; it was, in fact an expense.
The Plaintiff's driving instruction business did produce an income. It started in 1972 and to begin with was on a small scale. The business increased and, after 1975, the Plaintiff "was earning a certain amount" from it according to the Judge's finding. By the time she left the Defendant in 1980 she was earning, in all, about £60. per week (which we were told during the hearing was net of expenses). It looks as though she was earning at this rate from about 1977 or 1978 onwards.
There was never any question of the Plaintiff being asked by the Defendant to apply her earnings to household expenses so as to relieve him. She was free to do what she liked with her earnings.
The Judge's findings as to expenditure by the Plaintiff were as follows! (i) She made gifts of clothing and other things to the Defendant and the children. (ii) She paid for the housekeeping.
The Defendant allowed her, latterly, £60. per week for housekeeping.
It seems to be accepted that the Defendant was generous with money and the Plaintiff was not kept short as regards housekeeping money, (iii) She paid the rates. The housekeeping payments made by the Defendant were, however, fixed at an amount which took account of this, (iv) She paid the telephone bills. That was a matter of agreement between her and the Defendant because she spent a lot of time on the telephone talking to her friends, (v) She bought a number of chattels for domestic use: a dishwasher, a washing machine, a tumble dryer and either a drawing room suite or 3 armchairs and a bed for her separate room. The bed, the dishwasher and the chairs she took with her when she left in 1980. (vi) She provided some doorknobs and door furnishings of no great value.
None of this expenditure, in my opinion, indicates the existence of the common intention which the Plaintiff has to prove. What is needed, I think, is evidence of a payment or payments by the Plaintiff which it can be inferred was referable to the acquisition of the house. Lord Denning in Hazell v. Hazell (1972) 1 W.L.E. 301 at page 304 thought that expression, which appears in the speech of Lord Diplock in Gissing v. Gissing at page 909 was being over used. He said (quoting from Falconer v. Falconer (1970) 1 WLR 1382) that if there was a substantial financial contribution towards the family expenses that would raise an inference of a trust. I do not think that formulation alters the essence of the matter for present purposes. If there is a substantial contribution by the woman to family expenses, and the house was purchased on a mortgage, her contribution is, indirectly, referable to the acquisition of the house since, in one way or another, it enables the family to pay the mortgage instalments. Thus, a payment could be said to be referable to the acquisition of the house if, for example, the payer either (a) pays part of the purchase price or (b) contributes regularly to the mortgage instalments or (c) pays off part of the mortgage or (d) makes a substantial financial contribution to the family expenses so as to enable the mortgage instalments to be paid.
But if a payment cannot be said to be, in a real sense, referable to the acquisition of the house it is difficult to see how, in such a case as the present, it can base a claim for an interest in the house. Looking at the items which I have listed above, and leaving aside, for the present, the housekeeping which I will deal with separately, none of the items can be said to be referable to the acquisition of the house. The making of ordinary gifts between members of a family certainly is not, Nor, in the circumstances as found by the Judge, are the payments of rates or of the telephone bills. The provision of the door knobs etc. is of very small consequence. As regards the purchase of chattels for domestic use, the Plaintiff must, I think, have regarded at any rate some of these as her own property since she took them away with her when she left. But quite apart from that I do not think that the provision of chattels, by itself, is evidence of any common intention that the Plaintiff should have a beneficial interest in the house. In Gissing v. Gissing (supra) Lord Dilhorne at page 900, after referring to the requirement of a common interest that the wife should have an interest in the house said: "To establish this intention there must be some evidence which points to its existence. It would not, for instance, suffice if the wife just made a mortgage payment while her husband was abroad. Payment for a lawn and provision of some furniture and equipment does not itself point to the conclusion that there was such an intention".
And Lord Diplock said at page 910: "The Court is not entitled to infer a common intention — from the mere fact that she provided chattels for joint use in the new matrimonial home".
It is to be borne in mind that the Judge found that if the Plaintiff wanted more money at any time from the Defendant she could have had it. She was, no doubt, happy to use her own money to buy things for the house but, against the financial background, such purchases are no indication of a common intention that she was to have an interest in the house.
As regards work on the house, in 1971 a fairly substantial improvement was made to the house; the attic was converted into a bedroom with a bathroom en suite. That was paid for wholly by the Defendant.
In 1977 or 1978 the Plaintiff decorated the house throughout internally as she wished the house to be wallpapered and not painted. I do not think that carries her case any further. Thus in Pettit v. Pettit (1970) AC 777 at page 826 Lord Diplock said:
"If the husband likes to occupy his leisure by laying a new lawn in the garden or building fitted wardrobes in the bedroom while the wife does the shopping, cooks the family dinner and bathes the children, I for my part find it quite impossible to impute to them as reasonable husband and wife any common intention that these domestic activities or any of them are to have any effect upon the existing proprietary rights between the couple in the family home."
Accordingly I think that the decoration undertaken by the Plaintiff gives no indication of any such common intention as she must assert.
There remains the question of housekeeping and domestic duties.
So far as housekeeping expenses are concerned, I do not doubt that (the house being bought in the man's name) if the woman goes out to work in order to provide money for the family expenses, as a result of which she spends her earnings on the housekeeping and the man is thus able to pay the mortgage instalments and other expenses out of his earnings, it can be inferred that there was a common intention that the woman should have an interest in the house — since she will have made an indirect financial contribution to the mortgage instalments. But that is not this case.
During the greater part of the period when the Plaintiff and the Defendant were living together she was not in employment or, if she was, she was not earning amounts of any consequence and provided no money towards the family expenses. Nor is it suggested that the Defendant ever asked her to. He provided, and was always ready to provide, all the money that she wanted for housekeeping. The house was not bought in the contemplation that the Plaintiff would, at some time, contribute to the cost of its acquisition. She worked to suit herself. And if towards the very end of the relationship she had money to spare she spent it entirely as she chose. It was in no sense 'joint' money. It was her own; she was not expected and was not asked to spend it on the household.
I think it would be quite unreal to say that, overall, she made a substantial financial contribution towards the family expenses. That is not in any way a criticism of her; it is simply the factual position.
But, one asks, can the fact that the Plaintiff performed domestic duties in the house and looked after the children be taken into account? I think it is necessary to keep in mind the nature of the right which is being asserted. The Court has no jurisdiction to make such order as it might think fair; the powers conferred by the Matrimonial Causes Act 1973 in relation to the property of married persons do not apply to unmarried couples. The house was bought by the Defendant in his own name and, prima facie, he is the absolute beneficial owner. If the Plaintiff, or anybody else, claims to take it from him, it must be proved the claimant has, by some process of law, acquired an interest in the house. What is asserted here is the creation of a trust arising by common intention of the parties. That common intention may be inferred where there has been a financial contribution, direct or indirect, to the acquisition of the house. But the mere fact that parties live together and do the ordinary domestic tasks is9in my view, no indication at all that they thereby intended to alter the existing property rights of either of them. As to that I refer to the passage from the speech of Lord Diplock in Pettit v. Pettit at page 826 which I have already mentioned; and also to the observations of Lord Hodson in Pettit v. Pettit at page 811 and of Lord Reid at page 796. The undertaking of such work is, I think, what Lord Denning in Button v. Button (1968) 1 W.L.R. 457 called the sort of things which are done for the benefit of the family without altering the title property. The assertion that they do alter property rights seems to me to be, in substance, reverting to the idea of the "family asset" which was rejected by the House of Lords in Pettit v. Pettit. The decision in Gissing v. Gissing itself is really inconsistent with the contrary view since the parties lived together for ten years after the house was bought. In Hall v. Hall 3 FLR 379 at page 381, Lord Denning, M.R. does say this:
"It depends on all the circumstances and how much she has contributed — not merely in money but also in keeping up the house; and, if there are children in looking after them".
With respect I do not find support for that in the other authorities and I do not think that it is consistent with principle. I am not clear to what extent the matter was material in Hall v. Hall. So far as looking after children is concerned, it appears that there were no children (see per Dunn, L.J. at page 382). The case seems to have proceeded on the concession made by the man that the woman was entitled by way of resulting trust to a share in the house. The parties lived together for seven years and it was accepted by the man that they could not have bought the house but for the fact that both were earning (see per Lord Denning at page 381). The parties, in fact, pooled their resources (see the findings of the Judge page 383). Accordingly, it seems to me that the case may well have been one where the woman, through the pooling of their income, made a contribution, direct or indirect, to the mortgage payments.
The result, in my opinion, is that the Plaintiff fails to demonstrate the existence of any trust in her favour. The case is no stronger than that put by Lord Diplock in Gissing v. Gissing (supra) at pages 909-910 as follows:
"Where the wife had made no initial contribution to the cash deposit and legal charges and no direct contribution to the mortgage instalments nor any adjustment to her contribution to other expenses of the household which it can be inferred was referable to the acquisition of the house, there is in the absence of evidence of an express agreement between the parties no material to justify the court in inferring that it was the common intention of the parties that she should have any beneficial interest in a matrimonial home conveyed into the sole name of the husband, merely because she continued to contribute out of her own earnings or private income to other expenses of the household. For such conduct is no less consistent with a common intention to share the day-to-day expenses of the household, while each spouse retains a separate interest in capital assets acquired with their own moneys or obtained by inheritance or gift. There is nothing here, to rebut the prima facie inference that a purchaser of land who pays the purchase price and takes a conveyance and grants a mortgage in his own name intends to acquire the sole beneficial interest as well as the legal estate: and the difficult question of the quantum of the wife's share does not arise."
I should comment briefly upon certain of the authorities to which we were referred by Mr. Iwi for the Plaintiff.
In Falconer v. Falconer (1970) WLR 1333 at page 1336, Lord Denning makes it clear that where what is relied upon is a financial contribution to family expenses the contribution must be substantial to raise an inference of a trust.
In Cook v. Head (1972) WLR 518 at page 520 the principle is stated by Lord Denning with whom the other members of the Court agreed, that: "It is now held that whenever two parties by their joint efforts acquire property to be used for their joint benefit the Courts may impose or impute a constructive or resulting trust". In the present case, in my opinion, the facts do not justify the conclusion that the property was acquired by the joint efforts of the parties.
Bernard v. Joseph (1982) Ch 391, is a quite different case to the present. It was, it is true, a case of man and mistress, but the property was conveyed into joint names and the parties assumed joint liability in respect of the mortgage. Part of the house was let and the rents "helped greatly towards the mortgage instalments" (page 396). In these circumstances, the plaintiff, Miss Bernard, plainly was entitled to a substantial interest in the property. I do not think the case is of assistance in relation to the present problem.
For the reasons which I have given I think that the appeal must be dismissed. I only add this. The Plaintiff entered upon her relationship with the Defendant knowing that there was no prospect of his marrying her. And it is evident that in a number of respects he treated her very well. He was generous to her, in terms of money, while the relationship continued. And, what in the long term is probably more important he encouraged her to develop her abilities in a number of ways — with the result that she built up the successful driving instruction business', nevertheless she lived with him for eighteen years as man and wife, and, at the end of it, has no rights against him. But the unfairness of that is not a matter which the Courts can control. It is a matter for Parliament.
LORD JUSTICE MAY: This appeal raises a question which arises nowadays with increasing frequency.
If a man and a woman marry, acquire a home, live in it together, bring up children, but sadly sooner or later separate and divorce, the Courts have a wide discretion to adjust their subsequent respective financial situations under the provisions of the Matrimonial Causes Act, 1973. In. particular the Court has power to determine the spouses' respective rights to the matrimonial home, which is usually the family's main, asset, and by virtue of Section 25 (l) of the Act is given a wide discretion to exercise its powers to place the parties, so far as it is practicable and just to do so, m the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other.
However it is becoming increasingly frequent that couples live together without being married, but just as if they were so. They acquire a home for themselves and their children whom they bring up in the same way as the family next door. Nevertheless it also happens, just like their married friends, that differences do arise between the couple and they separate. In some cases the man and the woman can agree what is to happen in those circumstances, for instance, to their erstwhile joint home. But if they do not agree, they come to the Courts for the resolution of their dispute. In the case of an unmarried couple in these circumstances there is no statute which gives a Court similar power to those which it has as between husband and wife. In these cases the question therefore arises what principles is the Court to apply?
For my part, I agree that the principles which the Courts must apply are those laid down in the two cases of Pettit v. Pettit (1970) AC 777 and Gissing v. Gissing (l97l) A.C. 886. Those two cases concerned disputes between couples who had in fact been married, where the claims were made under Section 17 of the Married Womens1 Property Act, 1882 and not under the matrimonial legislation. But it is quite clear that the House of Lords decided that Section 17 is merely a procedural section giving the Courts no over-riding general discretion in such circumstances and that the principles to be applied are in general the same whether the couple have been married or not. I respectfully agree however with the warning expressed by Griffiths, L.J. in Bernard v. Josephs (1982) 1 Ch. 391, at page 402, where he said:
"...but the nature of the relationship between the parties is a very important factor when considering what inferences should be drawn from the way they have conducted their affairs. There are many reasons why a man and a woman may decide to live together without marrying, and one of them is that each values his independence and does not wish to make the commitment of marriage; in such a case it will be misleading to make the same assumptions and to draw the same inferences from their behaviour as in the case of a married couple. The Judge must look most carefully at the nature of the relationship, and only if satisfied that it was intended to involve the same degree of commitment as marriage will it be legitimate to regard them as no different from a married couple".
Further, in this particular field different people have very different views about the problems and relationships involved. In my view, as Parliament has not legislated for the unmarried couple as it has for those who have been married, the Courts should Toe slow to attempt in effect to legislate themselves. As Lord Reid said in Pettit's case at page 794s
"We must first have in mind or decide how far it is proper for the Courts to go in adapting or adding to existing law. Whatever views may have prevailed in the last century, I think that it is now widely recognised that it is proper for the Courts in appropriate cases to develop or adapt existing rules of the common law to meet new conditions. I say in appropriate cases because 1 think we ought to recognise a difference between cases where we are dealing with "lawyer's law" and case3 where we are dealing with matters which directly affect the lives and interests of large sections of the community and which raise issues which are the subject of public controversy and on which laymen are as well able to decide as are lawyers. On such matters it is not for the Courts to proceed on their view of public policy for that would be to encroach on the province of Parliament."
It follows that in these disputes between unmarried couples who have broken up, the Courts do not have a general power to do what they think is fair and reasonable in all the circumstances, as they have under the appropriate provisions of the Matrimonial Causes Act. In Pettit's case, at page 801, Lord Morris of Borth-y-Gest said: "It follows further, from my view, as I have expressed it above that with respect I do not agree with the statement in Appleton v. Appleton (1965) l WLR 25, 28 that if after a separation there is an application under Section 17 by a spouse who claims sole ownership of a house the test to be applied by the court is — "What is reasonable and fair in the circumstances as they have developed, seeing that they are circumstances which no one contemplated before?". In such a situation the duty of the Court is to decide whether the house was in the sole ownership of the one spouse who claimed such ownership."
The learned Law Lord expressed the same view on page 8O5 of the report where he said: "Nor is there power to decide on some general principle on what seems fair and reasonable how property rights are to be re-allocated." In his speech in the same case, at page ,826 Lord Diplock also disapproved of the decision in Appleton v. Appleton and thus of the suggestion that in circumstances such as those with which we have to deal in this case the Court has an over-riding dispensing power.
The speeches in Pettit's and Gassing's cases also make it clear that there is no general concept in English law of "family property" or "family assets". See Lord Reid at page 795 BC, Lord Hodson at 81OG and Lord Upjohn at 817DG in Pettit's case and Lord Dilhorne at 900A in Gissing. Lord Diplock recognised in his speech in the later of the two cases that the view which he had expressed to the contrary in Pettit had been disapproved by the majority.
I think that one therefore reaches the position that the resolution of these disputes must depend upon the ascertainment according to normal principles of the respective property rights between the man and the woman.
Further, two similar factors militate against and indeed prevent any application of general principles of contract law to the problem. First, it is seldom if ever that the man and the woman in these circumstances in fact come to any agreement between themselves about what 3hould happen to the matrimonial home if they were to part. As Lord Morris of Borth-y-Gest said in Pettit's case, at page 799:
"In the lengthening line of cases in which questions between spouses have called for adjudication under Section 17, the nature of the difficulties which arise is constantly and recurringly made manifest. When two people are about to be married and when they are arranging to have a home in which to live they do not make their arrangements in the contemplation of future discord or separation. As a married couple they do not, when a house is being purchased or when the contents of a house are being acquired, contemplate that a time might come when decision would have to be made as to who owned what. It would be unnatural if at the time of acquisition there was always precise statement or understanding as to where ownership rested. So, if at a later date questions arise as to the ownership of a house or of various things in it, though as to some matters no honest difference of view will arise, as to others there can be such honest differences because previously the parties might never really have applied their minds to the question as to where ownership lay".
Secondly, even if it be shown in any particular case that the parties had reached some agreement between themselves, there is I think real doubt whether this can be said to have been intended to create enforceable legal relations between them. cf. Balfour v. Balfour (1919) 2 KB 571. There is in any event a very real evidentiary difficulty to which for instance, Lord Reid referred in Pettit at page 796 where he said:
"The real difficulty is in inferring from some vague evidence of an arrangement what in fact the arrangement was. There is often difficulty in determining what were the terms of a commercial contract because the parties did not apply their minds to central matters. It has often been pointed out that spouses living happily together rarely apply their minds to matters which must be determined if their arrangement is to be given contractual force. So it is extremely difficult at a later date to determine what if any contractual effect can be given to some rather indefinite arrangement which preceded the expenditure of money by one of the spouses, and it is hardly possible to apply the ordinary rule that the essential terms of a contract must be sufficiently clearly established before it can be enforced. I do not think that there is much to be said for a rule of law if one finds the Judges are constantly doing their best to circumvent it by spelling out contractual agreements from very dubious material".
Further, as their Lordships pointed out in the two leading cases, if the only realistic conclusion on the material before the Court is that the parties in fact never made any agreement binding at law between them, then it necessarily follows that it is impossible to imply such agreement or, which comes to much the same thing, to imply more precise terms where any existing arrangement is imprecise.
In the result, my opinion is that the correct and general approach to these cases should be that summed up in a passage from Lord Pearson's speech in Gissing at page 902 where he said:
"I think it must often be artificial to search for an agreement made between husband and wife as to their respective ownership rights in property used by both of them while they are living together. In most cases they are unlikely to enter into negotiations or conclude contracts or even make agreements. The arrangements which they make are likely to be lacking in precision and finality which an agreement would be expected to have. On the other hand, an intention can be imputed: it can be inferred from the evidence of their conduct and the surrounding circumstances. The starting-point, in a case where substantial contributions are proved to have been made, is the presumption of a resulting trust, though it may be displaced by rebutting evidence. It may be said that the imputed intent does not differ very much from an implied agreement. Accepting that, I still think it is better to approach the question through the doctrine of resulting trusts rather than through contract law. Of course, if an agreement can be proved it is the best evidence of intention".
Where the legal estate to the family home had been taken in joint names then generally the beneficial interests will depend on the respective contributions of the parties to the acquisition of the property. See Crisp v. Mulling's (1976), 139 Estates Gazette, 119 and the recent decision in this Court in Walker v. Hall.
Where the legal estate in the family home has, however, been taken in the name of one of the parties only, then prima facie it will carry with it the whole of the beneficial interest. But for the reasons to which I have briefly referred, a claim to a beneficial interest in land made by a person in whom the legal estate is not vested can in certain circumstances be made by resorting to the doctrine of resulting trusts. Where the legal estate to the family home is in one name only, which is usually the male member of the couple, and the parties to the acquisition of the house have not expressed their common intention that the beneficial interest should be shared between them, it may nevertheless be possible to infer that common intention from their conduct and thus give rise to a resulting trust to which the Courts will give effect. It may be demonstrably inequitable to permit the legal title holder to retain the whole of the beneficial interest in the property. The inference about the parties1 common intention to which the court will give effect in this way is that which objectively a reasonable man would draw from their words and conduct at the relevant time.
At the hearing of this appeal our attention was drawn to a number of authorities, to some of which I shall briefly refer, and thereafter state what I think is the general approach adopted by the Courts to these disputes which can be deduced from the two leading cases in 1970 and 1971 and those which have followed them.
In Falconer v. Falconer (1970) 1 WLR 1333 the couple were married, in 1960. About a year later a building plot was bought in the wife's name as a site for a house. Part of the purchase price was provided by the wife's mother and the balance was borrowed on mortgage in which the husband joined as surety. A house was then built on the plot with money raised by another mortgage of the plot with the partially erected house on it. As the plot was in the wife's name she was the mortgagor. However her husband again stood surety. The husband's father also guaranteed the repayments, under the mortgage. After they moved into the house, the husband paid his wife a regular sum by way of housekeeping money. The wife herself went out to work and paid the mortgage instalments out of the total of her own earnings and her housekeeping money. About 18 months later the marriage began to go wrong and the husband moved out of the house. From that time and for two years thereafter he paid one half of the mortgage instalments and the rates on the properly. Subsequently the wife formed an association with another man and the husband stopped his payments. The marriage was ultimately dissolved. On the husband's summons under Section 17 of the Married Womans' Property Act, 1882, the County Court Judge held that the land itself belonged to the wife but that the husband had a half interest in the house. The wife's appeal to the Court of Appeal was dismissed and in the course of his judgment Lord Denning, M.S. referred to the decision in Gissling and said at page 1336:
"It stated the principles on which a matrimonial home, which stands in the name of husband or wife alone, is nevertheless held to belong to them both jointly (in equal or unequal shares). It is done, not so much by virtue of an agreement, express or implied, but rather by virtue of a trust which is imposed by law. The law imputes to husband and wife an intention to create a trust,' the one for the other. It does so by way of an inference from their conduct and the surrounding circumstances, even though the parties themselves made no agreement upon it. This inference of a trust, the one for the other, is readily drawn when each has made a financial contribution to the purchase price or to the mortgage instalments. The financial contribution may be direct, as where it is actually stated to be a contribution towards the price or the instalments. It may be indirect, as where both go out to work, the one pays the housekeeping and the other the mortgage instalments. It does not matter which way round it is. It does not matter who pays what. So long as there is a substantial financial contribution towards the family expenses, it raises the inference of a trust. But where it is insubstantial, no such inference can be drawn: see the cases collected in the dissenting judgment of Edmund Davies. L.J, in the Court of Appeal (1962) 2 Ch. 85, 97, which was upheld by the House, The House did, however, sound a note of warning about proportions. It is not in every case that the parties hold i in equal shares. Regard must be had to their respective contributions. This confirms the practice of this Court. In quite a few cases we have not given half-and-half but something different".
In his judgment Megaw, L.J. quoted a passage from Lord Pearson's speech in Gissing which was to this effect:
" I think also that the decision of cases of this kind has been made more difficult by excessive application of the maxim 'Equality is equity'. No doubt it is reasonable to apply the maxim in a case where there have been very substantial contributions (otherwise than by way of advancement) by one spouse to the purchase of property in the name of the other spouse but the proportion borne by the contributions to the total price or cost is difficult to fix. But if it is plain that the contributing spouse has contributed about one-quarter, I do not think it is helpful or right for the Court to feel obliged to award either one-half or nothing."
In the next case, that of Hazell v. Hazell (1972) 1 WLR 301, the couple were again husband and wife. They bought a house for the matrimonial home which was conveyed into the husband's name. The purchase price was obtained in part by a loan from the husband's parents and the remainder on mortgage from a building society. In order to meet the increased expenditure involved it was agreed between the parties that the wife should go out to work and she used her earnings to supplement the limited housekeeping monies which her husband gave her, including clothing for herself and the children. The top floor of the house was let and the rent was received by the husband. After 15 years the wife left her husband who stayed on in the house and continued to pay the outgoings. Pour years later the parties were divorced. The wife applied under the 1882 Act claiming that she was entitled to a share in the matrimonial home. The Deputy County Court Judge found that she had indeed made. substantial contributions to the family expenses but decided that she was not entitled to any share of the house because there was no express or implied agreement to give her one. He went on, however, to hold that if he was wrong in so deciding on that basis, then the wife should have a share amounting to one-fifth. On the wife's appeal to this Court held that she was entitled to a share in the ultimate value of the matrimonial home by virtue of the contributions which she made to supplement the housekeeping expenses. On the facts her earnings had helped her husband to pay the mortgage instalments. In his judgment Lord Denning, M.R. referred to what he had said in Falconer v. Falconer and his reference there to indirect contributions by one member of a couple to the purchase price of the matrimonial home and a little later at page 305 said:
"Stephenson, L.J. suggested in the course of argument that it might be inferred that her contributions were referrable to the acquisition of the house. That seems to be sufficient ground from which the Court could and should impute a trust. It would be inequitable for the husband to take the whole when she has helped him so much to acquire it. So I would reverse the decision of the Judge and hold that the wife is entitled to a share in the house".
The learned Master of the Rolls then upheld the Deputy County Court Judge's assessment of one-fifth. Megaw, L.J. agreed and in the course of his judgment, dealing with the question of contributions, said:
"In my judgment it is sufficient if as a matter of common sense the wife's contribution ought to be treated as being a contribution towards the expenses of the acquisition of the matrimonial home".
In Cook v. Head (1972) 1 WLR 518 the couple were not married. They planned to build a bungalow in which they could live after the man's wife had divorced him and they were able to get married. A. plot of land was purchased in the man's name and he paid the deposit and arranged the mortgage. Both the man and the woman helped to build the bungalow, the woman's part of the work including demolishing a building, removing hard core and rubble, working a cement-mixer and painting. They both saved each week as much as they could from their earnings. They pooled their savings and used these for mortgage repayments and buying furniture. However theirs was a relatively short-lived association, for when the bungalow was near completion but not entirely finished they separated and the man alone continued to live in it repaying the mortgage. It seems that the parties lived together for between two and three years. Upon an application by the woman for a declaration that the bungalow was owned jointly by herself and the man, Plowman, J. held that she had a one-twelfth interest in the property. She was dissatisfied and appealed. I quote brief passages from the judgment of Lord Denning, M.R.. again with which Karminski and Orr, LL.J. agreed:
"The particular case of man and mistress came before the Court of Appeal in Diwell v. Farnes (1959) 1 WLR 624. The Court was divided in opinion. The majority thought that a mistress was not in the same position as a wife. She could recover her actual contributions to the purchase price, but could not claim any part of the windfall on resale. Willmer, L.J. approached the case much as we approach cases between husband and wife. He would have given the mistress one-half. His approach is more in accord with recent developments. .......In the light of recent developments, I do not think it is right to approach this case by looking at the money contributions of each and dividing up the beneficial interest according to those contributions. The matter should be looked at more broadly, just as we do in husband and wife cases. We look to see what the equity is worth at the time when the parties separate. We assess the shares as at that time. If the property has been sold, we look at the amount which it has realised, and say how it is to be divided between them. Lord Diplock in Gissing v. Gissing (1971) AC 886, 909 intimated that it is quite legitimate to infer that: 'the wife should be entitled to a share which was not to be quantified immediately upon the acquisition of the home but should be left to be determined when the mortgage was repaid or the property disposed of'. Likewise with a mistress."
The learned Master of the Rolls then considered the various matters which should be taken into account in assessing the parties' share in the family home in these circumstances and ultimately held that the woman plaintiff was entitled to one-third of the net proceeds of sale, instead of the one-twelfth found by the learned Judge at first instance.
Richards v. Dove (1974) 1 A.E.R. 888 also concerned an unmarried couple. They first lived as man and mistress in rented accommodation and then in a house which was bought and taken in the man's name. He paid £350 by way of deposit, of which £150 had been lent to him by his mistress. The balance of £3,150 was obtained by a mortgage to the man from the local authority. After the couple moved in, as had been the situation in their earlier rented accommodation, the mistress continued to pay for the household food and gas; the man paid all other bills including the mortgage repayments. Walton, J. dismissed the woman's application for a declaration that the house was vested in the man on trust for both of them. In his view it did not follow that the application of the relevant principles produced the same result whether the parties were married or not, because it was impossible to leave out of the picture the fact that as between husband and wife the former has certain legal duties relating to the maintenance of his wife, whereas between man and mistress the whole relationship is consensual, with no legal obligations imposed. In his view all that the mistress had done in the case before him was to provide the loan of £150 towards the deposit and then to carry on as they had for a number of years in the rented accommodation, with the man paying off the mortgage. In truth, as the learned Judge held, this mistress made no "real" or "substantial" contribution to the acquisition of the matrimonial home and accordingly was not entitled to any share of it.
The case of Eves v. Eves (1975) 1 WLR 1338 also concerned an unmarried couple living together. They bought a house in the man's name partly by the sale of his previous house and partly by a mortgage which, he obtained. At the time of the purchase the man told his mistress that if she had been 21 years of age he would have had the house put in their joint names as it was to be their joint home. At the subsequent trial he said that he had used the plaintiff's age as an excuse for not having had the house put into joint names. At the outset the house was ; in a very dirty and dilapidated condition and the couple each worked hard to improve it. Ultimately, some three years later, the man left the house and remarried another woman. Pennycuick, V.-C. held that the plaintiff woman had not established a claim to be entitled to any share of the property and dismissed her application. She successfully appealed. On my reading of the judgments in this Court the basis for Lord Denning1s view that the woman was entitled to a declaration was that the untrue statement by the man that but for her age he would have put the house in their joint names amounted to a recognition by him that, in all fairness, she was entitled to a share in the house, equivalent in some way to a declaration of trust. He went on to say that the declaration was not for a particular share but for such share as was fair in view of all that she had done and was doing for the man and their children and would thereafter do. In his judgment, however, Brightman, J. with whom Browne, L.J. agreed, referred to the case of Gissing and expressed his view that the actual decision in that case was that the wife had made no contribution to the acquisition of the title to the matrimonial home from which it could be inferred that the parties intended her to have any beneficial interest in it. He went on to hold that the case then before his Court was different; the man clearly led the plaintiff to believe that she was to have some undefined interest in the property. That, of course, he said, was not enough by itself to create a beneficial interest in her favour but if it was part of the bargain between the parties, expressed or to be implied, that the plaintiff should contribute her labour towards the reparation of a house in which she was to have some beneficial interest, then in his view the arrangement became one to which the law could give effect. Although the Vice-Chancellor had been unable to find any link in the evidence, Brightman. J. disagreed and found it in these circumstances: "The house was found by them jointly. It was in poor condition. That needed to be done was plain for all to see, and must have been discussed. The plaintiff was to have some interest in the house, or so she was led to believe, although her name would not be on the deeds. They moved in. They both set to and put the house to rights. I find it difficult to suppose that she would have been wielding the 14 lb. sledge hammer, breaking up the large area of concrete, filling the skip and doing other things which were carried out when they moved in, except in pursuance of some expressed or implied arrangement, and on the understanding that she was helping to improve a house in which she was to all practical intents and purposes promised that she had an interest." In the result the Court held that the woman was entitled to a one-quarter share in the family home.
Of all the authorities to which our attention was drawn, I think that the facts of Hall v. Hall (1982) 3 FLR 379 are the closest to those un of the instant case. In Hall's case the couple were/married. The woman left her husband and went to live with the man who was divorced.
They bought a flat in the man's name, the woman contributing to the furnishings and the general household expenses. Subsequently a house was bought in the man's name, the purchase money coming partly from the proceeds of the sale of the flat, partly from the man's savings and partly by way of mortgage. Within a year the couple separated. On the woman's application to the County Court for a share in the family home, she was awarded one-fifth and her appeal to the Court of Appeal against this award was dismissed. At first sight the decision in Hall v. Hall might not seem to be in accord with the principles applied in the earlier authorities. However, having read the judgments in the case it is clear that the decision proceeded on a concession by Counsel for the man, both before the County Court and in the Court of Appeal, that in the events which had occurred there had been a resulting trust of the family house in favour of the woman. In these circumstances, save to the extent that the members of the Court of Appeal in Hall's case did not expressly say that they thought that this concession had been wrongly made, I think that one should be careful about reaching the conclusion that Hall's case extended the basis of the woman's entitlement in man/mistress cases of the type with which we are concerned. With the greatest respect and particularly having regard to the reference to Falconer v. Falconer in the judgments, I think that the concession in Hall v. Hall was wrongly made.
Be that as it may, in the course of his judgment Lord Denning, M.R. said at page 381:
"So it is said that she is entitled to a share in the equity of the house: not on the matrimonial law which governs husband and wife, but on the principle of a resulting trust. There have been a number of cases recently in the Courts where women in the position of this lady have been given protection to this extent: if a man and a woman have been living together as husband and wife, and the woman has been contributing towards the establishment of the joint household, although the house is in the man's name, there is a resulting trust as a matter of ordinary common justice for her. The two cases in which that principle has been settled are Cooke v. Head (1972) 1 WLR 518 and Eves v. Eves (1975) 1 WLR 1338 to which I would add the case of Tanner v. Tanner (1975) 1 WLR 1346. It is quite clear from the authorities that, although a couple are not husband and wife, the woman can — because of her contributions to the joint household — after a time obtain a share in the house by way of a resulting trust.
But what should that share be? That is always the difficulty. It is not always one half. It may be a good deal less. It depends on the circumstances and how much she has contributed — not merely in money — but also in keeping up the house; and, if there are children, in looking after them".
As will have been apparent, in some of the earlier decisions before Pettit and Gissing, the Master of the Rolls had held that the Court did have a power "to do what is fair and reasonable in all the circumstances". In both Pettit and Gissing the House of Lords made it quite clear, in my view, that no such general power exists. In all the decisions prior to Hall's case in which the wife or woman was held to be entitled to a share in the family home, on the evidence she had made a "real" or "substantial" contribution either to the deposit paid for the acquisition of the family home or to the instalments of the mortgage with whose assistance it was bought. In Pettit at page 826 Lord Diplock, whose speech was the most favourable to the applicant's case, said:
"It is common enough nowadays for husbands and wives to decorate and make improvements in the family home themselves, with no other intention than to indulge in what is now a popular hobby, and to make the home pleasanter for their common use and enjoyment. If the husband likes to occupy his leisure by laying a new lawn in the garden or building fitted wardrobes in the bedroom while the wife does the shopping, cooks the family dinner or bathes the children, I, for my part, find it quite impossible to impute to them as reasonable husband and wife any common intention that these domestic activities or any of them are to have any effect upon the existing proprietary rights in the family home on which they are undertaken. It is only the bitterness engendered by the break-down of the marriage that so bizarre a notion would enter their heads".
In these circumstances, I respectfully think that the dictum of the Master of the Rolls that the woman's contribution to the family well-being by keeping the house and looking after the children can be taken into account in assessing the extent to which a resulting trust has arisen in her favour was wrong.
On the other hand it would appear from a passage from the judgment of the County Court Judge quoted by Dunn, L.J. in the Court of Appeal at page 384 of the report that in Hall's case the woman had been working and bad been applying substantially all her earnings towards the housekeeping. In these circumstances it may have been argued that the woman had made an actual financial contribution to the acquisition to the family home, in that her pooled earnings had at the least made it easier for the man to pay the mortgage instalments.
Finally, I turn to Bernard v. Josephs (1982) 1 Ch. 391 to which I have already referred. That was again a case concerning an unmarried couple who lived in a family home which was taken in joint names. The couple assumed joint liability under a local authority mortgage for the whole of the purchase price. Each of them contributed to the initial expenses of the acquisition of the house, Whilst they were living together the man spent some £2000 on decoration and repairs and then they let off part of the house to tenants. After the relationship has ceased and the parties had separated the woman claimed under Section 30 of the Law of Property Act, 1925> for an order for the sale of the house and a declaration that she »as entitled to a half share. She succeeded both at first instance and in the Court of Appeal. In view of the fact that the family house in Bernard v. Josephs had been taken in joint names, I do not think that the broad approach referred to by Lord Denning in his judgment, in which he also mentioned both the earlier decisions in Cooke v. Head and Hall v.Hall, is necessarily equally appropriate where the legal estate to the family home had been taken in the name of only one of the man and woman concerned.
In his judgment Griffiths, L.J. first referred to Section 17 of the 1882 Act and Section 30 of the 1925 Act, stressing that both of these are essentially procedural and that neither gives the Court a wide discretion to decide the question of ownership of the house in accordance with its idea of what would be "fair" in all the circumstances. He said: " The respective interests of the parties must be determined by the application of the law relating to trusts". A little later in his judgment he said: " The starting point of any enquiry into the beneficial ownership of a house in joint names must be the conveyance". He then held that in the absence of any express declaration about the beneficial interest at the time of the acquisition of the family house, the Court must look to see the respective contributions of the parties towards the purchase price. At page 404 the learned Lord Justice continued: "In such, a case the Judge must look at the contributions of each to the 'family' finances and determine as best as he may what contribution each was making towards the purchase of the house. This is not to be carried out as a strictly mathematical exercise; for instance, if the man was ill for a time and out of work so that the woman temporarily contributed more, that temporary state of affairs should not increase her share, nor should her share be decreased if she was temporarily unable to work whilst having a baby. The contributions must be viewed broadly by the Judge to guide him to the parties1 unexpressed and probably unconsidered intentions as to the beneficial ownership of the house. There is of course an air of unreality about the whole exercise, but the Judge must do his best and only as a last resort abandon the attempt in favour of applying the presumption of equality, which may so often give an unfair result." In my view Griffiths, L.J, was here clearly referring to the parties' respective financial contributions to the acquisition of the matrimonial home, even though these must be looked at in the round.
In his judgment, Kerr, L.J. also considered the respective contributions of the man and woman to the acquisition of the house, on the broad lines indicated by the earlier authorities distinguishing the parties' contributions to the ordinary everyday expenses of living and keeping up the family home. At page 406 he contrasted the two types of contributions and in relation to the second said:
"They also both contributed to their living expenses during this period. (The woman) paid for their food and household necessities, and (the man) paid the electricity and other bills. I only mention the latter contributions in passing, since the Judge rightly took no account of these domestic arrangements, which might apply equally to any people living together in — for instance — rented accommodation, and which throw no light on what should be their share in the property in which they live".
In the light of all these cases, I think that the approach which the Courts should follow, be the couples married or unmarried, is now clear. What is difficult, however, is to apply it to the facts and circumstances of any given case. Where the family home is taken in the joint names, then unless the facts are very unusual I think that both the man and the woman are entitled to a share in the beneficial interest. Where the house is bought outright and not on mortgage, then the extent of their respectives shares will depend upon a more or less precise arithmetical calculation of the extent of their contributions to the purchase price. Where, on the other hand, and as is more usual nowadays, the house is bought with the aid of a mortgage, then the Court has to assess each of the parties' respective contributions in a broad sense; nevertheless the Court is only entitled to look at the financial contributions or their real or substantial equivalent to the acquisition of the house, that the husband may spend his weekends redecorating or laying a patio is neither here nor there, nor is the fact that the woman has spent so much of her time looking after the house, doing the cooking and bringing up the family.
The enquiry becomes even more difficult when the home is taken in only one of the two names. For present purposes I will assume that it is the man, although the same approach will be followed if it is taken in the name of the woman. Where a matrimonial or family home is bought in the man's name alone on mortgage by the mechanism of deposit and instalments, then if the woman pays or contributes to the initial deposit this points to a common intention that she should have some beneficial interest in the house. If thereafter she makes direct contributions to the instalments, then the case is a fortiori and her rightful share is likely to he greater. If the woman, having contributed to the deposit, but although not making direct contributions to the instalments, nevertheless uses her own money for other joint household expenses so as to enable the man the more easily to pay the mortgage instalments out of hi.3 money, then her position is the same. Where a woman has made no contribution to the initial deposit, but makes regular and substantial contributions to the mortgage instalments, it may still be reasonable to infer a common intention that she should share the beneficial interest from the outset or a fresh agreement after the original conveyance that she should acquire such a share. It is only when there is no evidence upon which a Court can reasonably draw an inference about the extent of the share of the contributing woman, that it should fall back on the maxim "equality is equity". Finally, when the house is taken in the man's name alone, if the woman makes no "real" or "substantial" financial contribution towards either the purchase price, deposit or mortgage instalments by the means of which the family home was acquired, then she is not entitled to any share in the beneficial interest in that home even though over a very substantial number of years she may have worked just as hard as the man in maintaining the family in the sense of keeping the house, giving birth to and looking after and helping to bring up the children of the union.
On the facts of the instant case, which my Lord has outlined, I think that it is clear that the appellant falls into the last of the categories to which I have just referred and accordingly I too would dismiss this appeal. When one compares this ultimate result with what it would have been had she been married to the respondent, and taken appropriate steps under the Matrimonial Causes Act, 1973, I think that she can justifiably say that fate has not been kind to her. In my opinion, however, the remedy for any inequity she may have sustained is a matter for Parliament and not for this Court.
LORD JUSTICE WALLER: This appeal is dismissed, for the reasons which have been handed down.
MR BURNS: As. to costs, my Lord, do I have any recourse to them?
LORD JUSTICE WALLER: Subject to anything that Mr Iwi has to say, you are asking for the appeal to be dismissed, with costs. Very well. Mr Iwi, what do you say?
MR IWI: My Lord, on the question of costs, if your Lordships' were minded — if I could, perhaps, deal with the end matters first in order to try to short-circuit the position — so far as the plaintiff is concerned, the situation is that she is an assisted party, I am instructed that her contribution was £100, and therefore, if your Lordships were minded to make an order for costs, it would be necessary, in my submission, either for your Lordships to determine the amount, or simply to make the usual order, not to be enforced without leave of the Court.
As to whether there should be an order for costs, in my submission although I accept, of course, that the plaintiff has lost the appeal, it was clearly a point of importance to her, which she was entitled to litigate before your Lordships. I would, therefore, invite you to bear that matter in mind, in considering whether it is proper, in the circumstances, to make an order for costs.
(Their Lordships conferred)
LORD JUSTICE WALLER: Mr Burns, we are disposed to dismiss the appeal, with costs, but with an order not to be enforced without the leave of the Court. That means you have to show to the Court that there are adequate means, on the part of the appellant, to provide some costs, but in no circumstances would it be more than £100. So we propose to make it not to be enforced without leave.
MR BURNS: Could I refer your Lordship to the Law Report of May 27th, when winning an appeal brings injustice in costs, and ------
LORD JUSTICE WALLER: No. Our order is that the appeal will be dismissed with costs, not to be enforced without the leave of the Court.
MR BURNS: Thank you.
MR IWI: My Lord, there are two other matters; first, with regard to the plaintiff's costs. I would ask for legal aid taxation in that respect. The second matter is with regard to the question of leave to appeal. I do not know whether your Lordships, as constituted, would be prepared----?
LORD JUSTICE WALLER: I know Lord Justice May's views because I have asked him. We are not disposed to grant leave to appeal to the House of Lords. You will have to ask their Lordships.
MR IWI: If your Lordship pleases.
ORDER: Appeal Dismissed — costs not to be enforced without leave. Application for leave to appeal to the House of Lords refused.
