Abstract
Today divorce increasingly follows separation, with or without a court order1 as an intermediate stage.2 In either event, one immediate effect is that the income and property, if any, that formerly supported one household must now maintain and support two separate households, at least for a time and perhaps permanently.
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But the Social Survey; Matrimonial Property, by J. E. Todd and L. M. Jones (1972) shows the rapid decline of the tradition as women increasingly seek stability in their lives by a proprietary right in their home: see further Chapter IV n. 49.
See Bagnall J. in Cowcher v. Cowcher [1972] 1 W.L.R. 425,
and the criticism by Lord Denning M.R. in Kowalczuk v. Kowalczuk [1973] 1 W.L.R. 930, 933, at D,
and by J. Levin, ‘The matrimonial home-another round’, 35 MLR (1972) 547.
Per Salmon L. J. in Rawlings v. Rawlings [1964] P. 398, 418. Excluding bankruptcy, sales were ordered in Jones v. Challenger [1961] 1 Q.B. 176 C.A., Rawlings v. Rawlings [1964] P. 398, Re Johns’ Assignment Trusts [1970] 1 W.L.R. 955, Jackson v. Jackson [1971] 1 W.L.R. 1539 and Burke v. Burke [1974] 1 W.L.R. 1063 CA. (under the Married Women’s Property Act 1882, s. 17). Sales were refused in Re Hardy’s Trust, The Times 23.10.70, Bedson v. Bedson [1965] 2 Q.B. 666 and Williams (J.W.) v. Williams (MA.) [1976] Ch. 278 C.A. In Nielson-Jones v. Fedden [1975] Ch. 222, the husband died after both parties had agreed that he should sell the house and use the proceeds. This was held not to defeat the wife’s right to the whole beneficial interest by the jus accrescendi.
See S. Cretney, 118 Solicitors’ Journal (1974) 431: ‘The Matrimonial home after Wachtel’; J. Neville Turner, 38 MLR (1975) 397: ‘Confusion in English family property law-Enlightenment from Australia?’ In Australia, the discretionary powers arise under Australian Federal legislation, whereas the Married Women’s Property Acts are State legislation.
The qualifications clearly indicate that one-third is normally the maximum for a wife, and the courts assume that where sums are large the wife will be entitled to less than half the share of the husband. See Bagnall J. in Harnett v. Harnett [1973] Fam. 156, 164G. An exception was O’D v. O’D [1976] Fam. 83 C.A.
It has been suggested, e.g. by S. M. Cretney, 36 MLR (1973) 653, 655, that less than a third of large sums may be a way of distinguishing ‘family assets’ from the husband’s investment capital. Where the husband owns the capital it is, of course, he alone who decides how much of it he will release into ‘family assets’ and contemporary evidence of his intention is likely to be indirect and inconclusive.
See, e.g. Jennifer Levin, 35 MLR (1972) 547;
J. Neville Turner. 38 MLR (1975) 397.
E.g. Roxburgh J. in Hickson v. Hickson [1953] 1 Q.B. 420, 427 CA.;
Romer L.J. in Cobb v. Cobb [1955] 1 W.L.R. 731, 736 C.A. Pettitt v. Pettitt [1970] A.C. 777 H.L.
Per Lord Hodson in Pettitt v. Pettitt [1970] A.C. 777, 810F.
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© 1977 Olive M. Stone
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Stone, O.M. (1977). The Effects of Separation or Divorce Between Spouses. In: Family Law. Palgrave, London. https://doi.org/10.1007/978-1-349-86147-7_7
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