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CHAPTER 3:PROPERTY RIGHTS OF SPOUSES UNDER ENGLISH LAW ON MARRIAGE BREAKDOWN
INTRODUCTION
In civil law countries, marriage affects the property rights of spouses.1 The property consequences of marriage are generally regulated through a defined legal framework commonly referred to as matrimonial property law.2 There is also a default matrimonial property regime which can be modified at the instance of spouses, either before or during marriage through the instrumentality of a marital agreement3 in existence in most civil law jurisdictions. Prospective spouses can, thus, construct their own system within the ambit of the law or can choose from a set of options as defined by statute.
The property rights of spouses under English law are in clear contrast to what is obtainable under the civil law jurisdictions in other places.4 In England, the mere fact that spouses are married does not influence their property rights,5 and a default property regime does not exist.6 The redistribution of property system in England is aptly described in the words of Sir Mark Potter:7
“Almost uniquely our jurisdiction does not have a marital property regime and it is scarcely appropriate to classify our jurisdiction as having a marital regime of separation of property. More correctly we have no regime, simply accepting that each spouse owns his or her own separate property during the marriage but subject to the court’s wide distributive powers in prospect upon a decree of judicial separation, nullity or divorce.”8
English law on matrimonial property has been described as “… a complicated patchwork of legislation and case law.”9 The property rights of spouses upon civil marriage breakdown were determined by the courts in accordance with the strict principles of the law of property.10 The powers of the English courts11 with respect to the capital assets of spouses are restricted, and the courts “… could only vary any antenuptial or postnuptial settlements.”12 The courts were not empowered to order a spouse to transfer his/her property to the other spouse. They were also prevented from making financial provision to a spouse by awarding a lump sum.13 Financial provisions were made by the courts only by way of maintenance to the wife.14
With the movement of opinion in the 19th century against the injustice which emanated from the strict application of the common law, the Married Women’s Property Act, 188215 was enacted by the English Parliament, and it introduced the doctrine of the “separate estate of spouses”.16 Notwithstanding the enactment of the Married Women’s Property Act, 1882,17 certain problems still remained unresolved, particularly in respect of properties which were being referred to as “family property” or “family assets”.18
While Bromley stressed the need for a complete overhaul of the entire field of matrimonial property law through the aid of a statute,19 Lord Reid in Pettitt v Pettitt20 was of the opinion that English law does not recognise joint family property or communio bonorum.21 He indicated the need for a legislative intervention in resolving the proprietary rights of spouses over their property, particularly such property as was used as family property during the subsistence of the marriage.22
When the Matrimonial Proceedings and Property Act Cap 45 of 1970 was enacted, however, English courts were empowered to transfer the assets of one spouse to the other by way of making a financial provision to the disadvantaged spouse.23 As the law stands at present, the statute24 gives English courts a wide discretion to adjust the financial position of the spouses and to make property adjustment orders on civil marriage breakdown.25 It enables the court to do justice by taking cognisance of the circumstances of each case.26
In England, there is separation of property with a judicial discretion to redistribute property in order to make provision for the financial needs of the disadvantaged spouse. In the determination of the property rights of spouses upon marriage breakdown, there is a benchmark of equal division.27 Under English law, it is presumed that both spouses had contributed to the family welfare to the best of their ability.28 The conduct of spouses or the assessment of their contribution does not affect financial claims.29 The quantum of the spouses’ contribution is brought into focus only in exceptional cases and assessed only if there was such a disparity in their contributions that it would be inequitable to disregard such in granting financial claims. Then the court examines the contribution made to the family’s welfare.30
Until the decision in Radmacher v Granatino,31 which brought about a shift in judicial thinking,32 prenuptial and postnuptial agreements were not binding on English courts.33 English courts took such agreements into account only as one of the factors to determine the appropriate order to make in terms of ancillary relief.34 In W v W,35 the court followed the decision in Radmacher v Granatino36 and accorded weight to the prenuptial agreement of spouses.
Against the backdrop of the foregoing, this study examines the development of English law with regard to the property rights of spouses on the breakdown of marriage. This is done in the light of statutory provisions and recent case law.
PROPERTY ENTITLEMENT OF SPOUSES AT COMMON LAW
Prior to 1882, upon the celebration of marriage, the husband had total control of all the freehold assets held by the wife before and during the marriage.37 While the leasehold property of the wife belonged to the husband, the power of disposition in relation to the wife’s real property was also vested in the husband.38 The situation was not different in respect of personal property. The wife’s personal property (except articles of apparel and personal ornament) which she acquired before and after the marriage vested in the husband who possessed the power to dispose of them either by will or inter vivos.39 All these were made possible under the common law via the common law doctrine of the legal unity of spouses.40
As a result of the injustice which the common law rule created,41 the Married Women’s Property Act, 188242 was enacted by Parliament. The Act empowered a married woman to retain, as separate property, all property (whether real or personal) over which she had legal title at the time of her marriage with the right to dispose of the same as if she were a feme sole.43
Since 1882, the principle of separate property remained the basis of the law of family property in England.44 It has been a basic principle of English common law that marriage, as such, does not have an immediate effect on the property entitlement of spouses. At common law, therefore, marriage does not change the ownership of property, although it may affect its enjoyment45 in relation to ancillary relief. This was put very clearly in the case of Pettitt v Pettitt.46 Lord Upjohn stated
“… the rights of the parties must be judged on the general principles applicable in any court of law when considering questions of title to property, and though the parties are husband and wife these questions of title must be decided by the principles of law applicable to the settlement of claims between those not so related, while making full allowances in view of the relationship.”
There is, thus, an apparently firm assertion of the basic principle of the doctrine of separate property. The individual property of spouses acquired before their marriage remained their separate property even after the marriage, and neither spouse could acquire any proprietary interest in the other spouse’s property.47 The only means by which there could be an acquisition of interest in the property of a spouse is only when there is a disposition in that other spouse’s favour, or by virtue of a court’s order upon the breakdown of marriage which limits the interest of a spouse in the other spouse’s property to that of enjoyment and use only.48
The position is not different in relation to a joint property, that is, in cases where either spouse alleges to be a co-owner. Common law requires a strict proof of interest which must be substantial in nature for a spouse to be declared a co-owner, and such interest must be evidenced in writing (generally by way of a deed).49 Common law, thus, stipulates that, before any interest in land can be created or conveyed, it must be made by a deed.50 This formal requirement of the common law became problematic where the property in question concerned a family asset.51 The courts were confronted by the question of whether a particular property should be regarded as a family asset52 notwithstanding in whose name the title document was written. It is noted that most of the cases which were determined by the courts had to deal with the matrimonial home53 and the question of whether it was jointly owned so as to entitle both spouses to an interest in it.
It is submitted that, under common law, English courts had no discretion to redistribute the property of either spouse upon the breakdown of marriage.54 For the courts to adjust the property rights of spouses, the spouse who claimed to have a proprietary interest in the other spouse’s property, must, in the absence of a legal interest, prove the existence of a beneficial interest in such a property.55 This issue brings the cases which were decided before the enactment of the Matrimonial Proceedings and Property Act Cap 45 of 1970 to the fore. It is noted that the Matrimonial Proceedings and Property Act Cap 45 of 1970 is a direct response by Parliament to the several injustices which spouses, mostly the wives, suffered at common law consequent upon the strict application of common law principles in ascertaining ownership to (matrimonial) property.56
In Gissing v Gissing,57 the legal title to the house used as the matrimonial home of the spouses was in the husband’s name. The wife paid some £220 from her savings to furnish the house and have a lawn laid. In 1961, the husband deserted the wife to live with another woman, saying as he left: “Don’t worry about the house – it’s yours. I will pay the mortgage payments and all other outgoings.” In 1966, after the wife had obtained a decree absolute, the husband, wishing to sell the house, claimed exclusive ownership. He also claimed to be entitled to all the proceeds from the sale of the property. The wife sued to ascertain ownership. The trial court held that the wife had no interest in the matrimonial home as it belonged to the husband.
TITLE
DECLARATION OF ORIGINALITY
DEDICATION
ACKNOWLEDGEMENTS
ABSTRACT
TABLE OF CONTENTS
CHAPTER 1: GENERAL INTRODUCTION
CHAPTER 2: DETERMINING THE PROPERTY RIGHTS OF SPOUSES ON MARRIAGE BREAKDOWN IN NIGERIA
CHAPTER 3: PROPERTY RIGHTS OF SPOUSES UNDER ENGLISH LAW ON MARRIAGE BREAKDOWN
CHAPTER 4: PROPERTY RIGHTS OF SPOUSES ON MARRIAGE BREAKDOWN: A PERSPECTIVE OF THE AUSTRALIAN MATRIMONIAL PROPERTY SYSTEM
CHAPTER 5: MATRIMONIAL PROPERTY LAW IN SOUTH AFRICA: AN OVERVIEW
CHAPTER 6: TOWARDS A NEW APPROACH TO MATRIMONIAL PROPERTY RIGHTS IN NIGERIA: LESSONS FROM AUSTRALIA, ENGLAND AND SOUTH AFRICA
CHAPTER 7: CONCLUSION AND PROPOSALS FOR REFORM
TABLE OF LEGISLATION AND INTERNATIONAL INSTRUMENTS
TABLE OF CASES
BIBLIOGRAPHY
LIST OF ABBREVIATIONS
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