The Legal Consequences of Marriage: Property Regimes
Introduction: legal status
Marriage creates a legal status.1 By marriage a couple acquire legal rights and duties, and, broadly speaking, the law refuses to allow them to vary those rights or escape from those duties however much they might want to do so.2 These rights and duties were particularly significant in relation to entitlement to property and rights of financial support. But marriage was also of great significance because the fact that a child’s parents were married conferred on the child the status of legitimacy, a status from which again certain legal consequences flowed.
The unity theory and its effect at common law
‘the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert, femina viro co-operta; is said to be covert-baron or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.’
From this doctrine of the unity of husband and wife, it was said to follow that in principle a married woman could not own property; and that all the personal property5 which she had owned before marriage, all her earnings after the marriage, and any savings she made out of them vested in the husband.6
Effect of unity theory not restricted to property
The unity theory did not only affect property rights. Since the wife effectively lacked any distinct legal personality of her own she could not sue in her own name, and she could not in principle make an enforceable contract; whilst her husband had to be joined in any legal action against her (and was liable to pay any damages awarded against her) and he was also liable for her pre-marital debts, contracts, and torts. It is not a great exaggeration to say that the common law robbed the married woman of full human personality.7
This chapter is primarily concerned with reform of the rules relating to married women’s property rights; but, as will be seen, the way in which reform was carried out meant that the consequences of the unity theory remained relevant for many years. Not until the second half of the twentieth century could it confidently be said that the doctrine of unity and its ramifications was dead and had been buried and that the law recognised husband and wife as two individuals equally capable of acquiring and holding property, entering into contracts, and equally responsible for their own wrongs.8
(p.92) Entitlement to property: equitable intervention
The first limitation on the proprietary consequences of the common law doctrine dates back to the eighteenth century when the courts of equity rejected the notion that a woman lost her legal personality by marriage. Equity (it was said):9
‘devised the doctrine of “separate use”. [The Court of Chancery] could not interfere with legal interests in property, but when that legal interest was transferred to trustees upon trust to deal with it in a certain way, the Court of Equity compelled the trustees to act in accordance with the trust. In this way when the beneficial or equitable interest … in property was limited to the separate use of a woman, whether before or after marriage, she could enjoy it independently of her husband and he could not get control of it against her will. Property so settled was called her “separate property”. After the first quarter of the eighteenth century the Court of Equity went even further and adopted the practice of protecting as her separate property any property given to her for her separate use even without the intervention of trustees. In such a case, the husband (to whom the legal title in the property passed) was regarded as a trustee of the property for the wife.’
For this reason, prudent parents in the wealthy and middle classes would insist on a proper settlement being made on a daughter’s marriage to ensure that her property10 was held for her separate use; and in this way family capital could be protected against appropriation by the husband (and his creditors), whilst the wife could be assured a level of financial independence. The result (according to Dicey)11 was that although the ‘daughters of the rich enjoyed … the considerate protection of equity, the daughters of the poor suffered under the severity and injustice of the common law’.
The limits of equitable protection: the campaign for reform
Equity did not protect women who had married without a settlement; nor could it adequately protect a married women (whether or not she had a settlement) (p.93) against the exercise of her husband’s common law right to seize her earnings and any savings she made out of them. It was this latter gap which seems to have been most influential in creating pressure for reform of the law. Although the upper and middle classes would usually have settlements, the great majority of married women did not have substantial family capital and thus the fact that they either did not have a marriage settlement, or had a settlement which produced only a tiny income,12 did not greatly affect them. But (to quote Dicey again) the number of women who could as ‘teachers, musicians, actresses, or authoresses, gain large emoluments by their professional skill had, since the beginning of the nineteenth century, greatly increased, and … this body of accomplished women had obtained the means of making known to the public through the press every case of injustice done to any one of them’.13
The pressure which these articulate high earners14 could bring to bear through pamphleteering,15 meetings and pressure groups was formidable; but it seems to have been the plight of the woman deserted by a drunken labourer and compelled to keep herself by working as a seamstress or laundress which really struck home. Such women would often find the tiny savings they had deposited for safety in a Co-operative Society or Savings Bank seized by the husband in the exercise of his common law rights.16 Few of even the most conservative Members of the (then exclusively male) Parliament felt able to defend the way in which the law worked, not least because the lack of legal security for savings may have deterred some deserted wives from even trying to become self-sufficient.17
These factors eventually had a decisive influence not only on Parliament’s acceptance that something should be done to remedy a ‘monstrous injustice to the working classes’; but also on the content of the reforming Married Women’s Property Acts 187018 and 1882; and the way in which these statutory reforms (p.94) were carried out in turn had a strong influence on the development of family property law in the twentieth century.19 A brief summary of developments in the second half of the nineteenth century is therefore essential to an understanding of later developments.
Nineteenth century legislation
(i) The Matrimonial Causes Act 1857
In 1857 the Palmerston government decided to legislate for judicial divorce (for which there seemed to be comparatively little demand) and rejected pleas to legislate on married women’s property (for which there was a great deal of demand).20 But the divorce debates did provide an excellent opportunity to publicise the injustices of the law governing married women’s property; and this criticism did not come exclusively from radicals. The former Tory Lord Chancellor, Lyndhurst21 was, for example, prominent amongst the campaigners and claimed to know of countless cases where a man married, dissipated his wife’s money, abandoned her, and only reappeared when she got a legacy or had accumulated earnings and would then ‘act the old part over again, until, the money being spent, he finally abandoned her.
If the coming into existence of a marriage had given the husband a right to the wife’s property it would perhaps have been logical for that property to be returned when the marriage was dissolved,22 or at least to give the court a discretion to order that it be returned. But the 1857 Divorce Act did not deal coherently even with the implications of divorce for property entitlement. The Act did seek to deter the adulterer23 by giving the court power to order a wife divorced for adultery to settle some or all of her separate property for the benefit of the innocent party and the children of the marriage. But the Act was silent about the much commoner case in which property had been settled in a marriage settlement;24 and in 1859 legislation was hurriedly introduced to prevent the adulterous (p.95) wife from living ‘with the adulterer upon that income which she had received from the generosity’ of her husband.25
In these respects the divorce legislation seemed concerned to protect the interests of cuckolded men rather than to remedy the injustices highlighted by Lyndhurst and others; but one concession was made to the working wife. The 1857 Divorce Act gave courts (including magistrates’ courts) power to make a so-called ‘protection order’ on the application26 of a deserted wife who could prove that she was ‘maintaining herself by her own industry or separate property’. Such an order ‘protected’ money or property acquired after the desertion by the wife’s ‘own lawful industry’ (as well as any other property acquired by her, for example by inheritance or gift) by declaring that the property in question was to belong to the wife as if she were a feme sole. But, notwithstanding the considerable trouble taken in drafting the clause27 experience demonstrated that it was in many respects defective,28 and the Protection Order procedure remained largely a dead letter.29 As we shall see, the reforms of the 1870s and 1880s made the protection order redundant in the context of matrimonial property, whilst the need to protect the vulnerable against domestic violence remained a major problem over the years.
(p.96) The 1857 Act did make express provision dealing with the effects of a decree of judicial separation (for otherwise the wife would have remained subject to all her legal disabilities and would, for example, have no right to make contracts in her own name). The Act provided30 that a judicially separated woman should be considered a feme sole in relation to any property she subsequently acquired, and also for the purposes of contracts, torts, and legal actions.31
(ii) The Married Women’s Property Act 1870
The publication of John Stuart Mill’s The Subjection of Women in 1869 gave powerful intellectual stimulus to the reform movement. Bills were introduced in 1868 and 1869; and the debates (as well as the evidence given to the Select Committees which reported on the Bills)32 exposed the hardship and injustice caused by the unreformed law.33 Eventually the Married Women’s Property Act 1870 was passed; but drastic amendment in the House of Lords34 made it a pale shadow of what even the most moderate reformers had wanted. As Lord Penzance35 put it, the Bill presented to the Commons had been a Bill to separate husbands’ and wives’ property; the Act which emerged after the House of Lords had made amendments did little36 more than give the married woman the legal right to property earned by her own industry or talents37 and to keep sums received on intestacy, small legacies,38 and savings deposits.39 Agitation continued, (p.97) and eventually Lord Chancellor Selborne was persuaded to introduce the Bill which became the Married Women’s Property Act 1882.40
(iii) The Married Women’s Property Act 1882
It would have been possible to meet the objectives of the reformers by a simple legislative provision,41 to the effect that no person should ‘by marriage acquire any interest in the property of the person whom he or she marries, nor become incapable of doing any act in respect of his or her own property, which he or she could have done if unmarried’.42 But this was not the technique used in the 1882 Act. Instead, the Act43 gave the married woman44 the right to hold all the property belonging to her at the time of the marriage or acquired by her thereafter as her separate property. In this way the Act not only avoided the alien connotations of the community of property regimes in force in most of continental Europe but could be defended as doing ‘no more than [to] give to every married woman nearly the same rights as every English gentleman had for generations past secured under a marriage settlement for his daughter on her marriage’.45
These tactics may have been politically astute since even those who disagreed with the notion of equal rights for the sexes were often prepared to concede the case for separate property.46 The passage of the 1882 Act seemed (at least in the short term) to remedy the grievances against which women had for so long protested; and it is understandable that the groups at the forefront of the (p.98) campaign should have talked of a ‘bloodless and beneficent revolution’ and a ‘great victory of the principle of human equality over the unjust privilege of Sex’.47Indeed, Dicey48 saw the Act as reinforcing the belief that women ought to stand substantially on an equality with men in the eye of the law and thus encouraging further legislative moves towards equality. But at a technical level the 1882 Act had serious disadvantages.
The price paid for the Married Women’s Property Act 1882
The High Court judge who claimed that the 1882 Act left nothing but ‘confusion, obscurity and inconsistency’49was exaggerating; but the drafting technique of extending (and, in 1882, universalising) separate property did lead to misunderstanding50 and the legislation had unforeseen incidental effects.51 Many problems remained to be resolved over the years to come.52 For example:
(i) At common law, a married woman lacked the single woman’s capacity to make contracts;53 but equity made her liable to the extent of her separate property. The 1882 Act did not reverse the common law rule, but did provide54 that a married woman was capable of entering into, and to the extent of her separate property rendering herself liable on, any contract. A contract could only be enforced against her, therefore, if the plaintiff could prove that at the time of making the contract she had separate property. Otherwise she could not be rendered liable, irrespective of how much property she had acquired after making the contract.55
(ii) At common law the husband was liable for the wife’s torts; and the 1882 Act did not (so a majority of the House of Lords held)56 reverse this rule.
(iii) The Act did not reverse the general rule of the common law prohibiting spouses from suing one another in tort. The Act provided57 that a wife could sue her husband ‘for the protection and security of her own separate property’; and the interpretation of this provision caused considerable difficulty.
(iv) The wife’s liability in tort and contract was not personal but proprietary and limited to the extent of her separate property. Accordingly, even if she were held liable, the judgment could not58 be enforced by committal to prison under the Debtors Act 1869.59
(v) The Act did not prevent a married woman’s property being made subject to restraint on anticipation.60 A restraint prevented the wife from anticipating her entitlement (for example by assigning her interest in the property) and prevented a creditor from enforcing judgments against the property.61
(p.100) All except the last of these problems arose because the law was framed in terms of grafting special rules onto the concept of the wife’s ‘separate property’ as it had been developed by the Court of Chancery.62 In the years up to the beginning of World War II the courts were much occupied in clarifying the meaning of this concept, whilst legislation culminating in the Law Reform (Married Women and Tortfeasors) Act 1935 focussed largely on remedying the problems which experience had revealed.
Unravelling the consequences of the separate property regime
The concept of separate property had developed in the context of trusts and settlements; but the 1882 Act used it much more broadly. For example:
In Ralston v. Ralston63 a wife, for many years separated from her husband, brought a libel action against him alleging that the gravestone he had erected in memory of his ‘dearly beloved wife’ implied that the deceased had been (and the plaintiff was not) lawfully married. She claimed that she was entitled to pursue the action, (notwithstanding the general rule that spouses were debarred from suing one another in tort) because the 1882 Act allowed a married women to bring such actions in order to protect her ‘separate property’64 and that since the libel would damage the goodwill attaching to her substantial business as a garage proprietor her claim fell within that exception. The claim failed.
A much commoner situation was where a man’s negligent driving injured the woman he subsequently married. Could she, after the marriage, sue him (or in reality his insurance company)?
In Gottliffe v. Edelston65 ά man negligently drove his car into a horse and cart and the injuries caused his companion to lose her sight in one eye. At the time of the accident they were in what the judge described as ‘the glamour of that period which precedes the romantic severity of a formal engagement’; but they subsequently married. The wife claimed that the action she brought against her husband was for the protection of her separate property. In a lengthy and scholarly (p.101) judgment McCardie J held that, taking into account the ‘scheme and wording’ of the 1882 Act the right of action vested in her before the marriage could not be described as her ‘separate property’; and accordingly the claim failed. However, in 1948 the Court of Appeal66 overruled the decision, on the basis that the wife’s cause of action constituted a ‘chose in action’ which the 1882 Act specifically brought within the expression ‘separate property’.
Married Women’s Property Act unfair to married men?
The 1882 Act had been intended to remedy the inequities which married women suffered in relation to property rights; but grafting a separation regime onto the common law unity doctrine was soon found to put married men at a disadvantage. The Act was admittedly a Married Woman’s Property Act and not a Married Man’s Relief Act;67 but some men thought the process had been taken too far. In Gottliffe v. Edelston68 McCardie J69 made it clear that he took this view:70
‘Married women, however ‘wealthy of purse or independent of character, possess powers and privileges which are wholly denied to husbands. Husbands are placed under burdens from which wives are free. Thus a husband living with his wife is liable to pay income tax upon her income,71 even though she may refuse to contribute anything to the household expenses…. Again, a husband is liable for any tort his wife may commit provided it is not connected with a contract…. It matters not whether the tort be negligence, slander, trespass or assault. Thus she may be driving a motor car against his express request. She may, by her negligence, cause damage to a third person to the extent of thousands of pounds. For this damage the husband can be sued…. Judgment may be given against him for the damages, and upon that judgment he may be made bankrupt. He has no right whatever to claim any part of the damages from his wife, even though she be possessed (p.102) of a large private fortune of her own. A wife, on the contrary, is not liable for her husband’s tort, unless she authorized or joined in it. Nay more, if the wife threatens to commit a tort which may inflict a heavy burden on a husband he has no right whatever to apply to the Court to prevent her from doing the wrongful act. The husband is helpless…. Again, if a husband wrongfully converts to his own use the goods of his wife she may bring an ordinary action against him for public trial in the courts…. But if a wife wrongfully converts to her own use the goods of her husband the only remedy of the husband, so far as he has any remedy at all, is to apply to the Court under the special72 provisions of s. 17 of the Married Women’s Property Act, 1882…’73
But whatever the injustices suffered by married men, it was feminists who continued public agitation74 for further reform, and full legal equality was only attained half a century later after four statutes and a mass of hotly disputed case law.
Removing the last ‘barbarous relics’ of the wife’s servitude75
(i) The Law Reform (Married Women and Tortfeasors) Act 1935
In 1934 the continuing agitation for further reform bore fruit: Lord Sankey76 referred the liability of spouses in tort and contract77 to his newly established (p.103) Law Revision Committee;78 and the Committee evidently took the view that this remit necessarily required an examination of the concept of ‘separate property’ central to the 1882 Act. The Committee’s recommendations were radical; and it has been said79 that the Law Reform (Married Women and Tortfeasors) Act 1935 (which gave effect to them) constituted a ‘frontal attack’ on some of the fundamental problems of the English law of husband and wife.
The Law Revision Committee’s starting point was breathtakingly simple:
‘Women nowadays, whether married or single, engage in almost all professions, trades and businesses and are eligible to hold and do in general hold every sort of public and official post and exercise every right and franchise80 just as much as men.81 There seems no reason, once it is established that they are no longer debarred by the law from holding property independently of their husbands, why they should not do so with all the corresponding rights and liabilities like everyone else.’82
On that basis, the Committee could see no reason for treating property owned by a married woman in any way differently from that of any other woman or any man. There was no good reason for keeping alive the idea of ‘separate property’; and if a married woman incurred a debt the judgment against her should be personal (rather than merely proprietary) and in the same form and with the same legal consequences as would apply in the case of a spinster, a widow, or a man. In short, the conception of the wife’s separate property should be abolished; and the married woman exposed to the rigours of bankruptcy and debt enforcement in the same way as were others.83
In one respect, however, the Committee was unwilling to recommend radical action. At a surprisingly late stage in its deliberations,84 the Committee realised that in some—perhaps many—cases the reason why a creditor was unable to enforce a judgment was not because the married woman debtor had no separate property, but because that property was subject to a restraint on (p.104) anticipation85—a provision almost routinely inserted into marriage and other settlements86 which effectively prevented creditors from seizing the capital or attaching the income derived from the property in question;87 and the Committee therefore had to consider whether restraints should continue to be recognised. It concluded that to retain the institution would be incompatible with the ‘present position of married women, to whom alone it applies’; but (mindful of the political difficulties which might arise in respect of legislation which could be said to be retrospective)88 the Committee drew back from proposing outright abolition. Instead it recommended89 that, whilst no restraints upon anticipation should be created in the future the provisions of existing settlements should remain unaffected. As we shall see, a decade later this topic was to provoke more parliamentary discussion and acrimonious debate than any other twentieth century legislation dealing with matrimonial property.
Sankey evidently appreciated the sensitivity of legislation dealing with the relations between the sexes, and was well aware that the Committee’s proposals significantly improved the legal position of married men,90 and in practical terms did very little for married women. He therefore took particular care to gain the support of women MPs91 for the changes. In fact the Law Reform (p.105) (Married Women and Tortfeasors) Act 1935passed through Parliament with little opposition or hostile criticism; and in retrospect it can be seen that the Act—by abolishing the special regime applicable to ‘separate property’ and equating for the future the legal position of married and unmarried women in contract and tort—made a fundamental change in the law.92 It deserved the title Law Reform (Status of Married Women) Act that at one stage was intended for it.93
(ii) The Married Women (Restraint on Anticipation) Act 1949
The 1935 compromise on Restraints on Anticipation94 did give rise to controversy.95 On the one side it was said that recognition of existing restraints implied that married women were irresponsible; and that to prevent women from dealing with their property as they wished was not in accordance with human dignity. On the other side it was claimed that the refusal to allow restraints to be imposed in the future merely evidenced a preference for naive ideology as against recognition of the legitimate interests of property owners in protecting their womenfolk against exploitation and abuse.96
But that was largely theory. The war-time and post-war increases in the rates of tax on income (to as much as97.5 %) were facts. The spending power of many married women of independent means was dramatically reduced; whilst the existence of a restraint made it virtually impossible to take the measures open to the well advised to minimise the tax system’s worst burdens. The Married (p.106) Women (Restraint on Anticipation) Act, passed in 1949, seemed to bring the progress of assimilating the property rights of married men and married women to a triumphant conclusion. The Act97 proclaimed that no ‘restriction upon anticipation or alienation attached … to the enjoyment of any property by a woman which could not have been attached to the enjoyment of that property by a man shall be of any effect …’; and thus seemed neatly to assert the principle that, whilst conveyancing techniques98 intended to protect beneficiaries from their own misfortune or extravagance could still be used, inequality between the sexes was not to be tolerated.
That was indeed the outcome. But in fact it was the pressing need to escape from an embarrassing political situation rather than any concern for removing sex discrimination which explained the Government’s decision to legislate. In March 1949, the Attorney-General, Sir Hartley Shawcross told an MP who had taken up the case of a constituent suffering hardship that there was ‘no prospect’ of amending legislation;99 yet three months later (even though the Government was faced with the possibility of a back-bench rebellion against what was seen by some as a ‘rich-man’s tax dodging scheme’)100 it had decided to act.
This dramatic change in policy was precipitated101 by the case of the Countess Mountbatten of Burma, the heiress wife of the former Viceroy of India. Her pre-war income of £110,000—approaching three million pounds in modern values—from her grandfather’s102 1920 will, had been reduced by taxation etc to a mere £4,500; and the financial burden of carrying out the public duties the Mountbattens had assumed after the death on active service of the King’s brother and the ‘great and necessary personal expense’ the Mountbattens incurred whilst in India left Lady Mountbatten ‘financially embarrassed’.103 She was therefore advised to present a private Bill to (p.107) Parliament,104 the effect of which would have been to remove the restraint in her case, and thus give her the unfettered right of dealing as she wished with her interest under the will.105 The Bill passed through the elaborate Private Bill procedure in the House of Lords; but the Mountbattens had enemies.106Backbench Opposition MPs put down a notice of a motion in the Commons declining to give a second reading ‘to a personal Bill promoted to secure an amendment of the law which, if justifiable, should be made by Public Act for the benefit of all whom it may concern’. The Government, after some vacillation, decided to accept the principle underlying the motion; and (after a stormy passage)107 the Married Women (Restraint on Anticipation) Act consigned the Restraint to history. Of course, the 1949 Act benefited the many ‘Ordinary little(p.108) people’108 affected by restraints (such as a teacher’s wife left an inheritance of £5,000) whose plight was feelingly depicted by Sir Hartley Shawcross109 in the Debates; but it was the need to remedy110 the financial embarrassment suffered by a woman who needed 19 domestic staff (including three cooks, a valet, a butler and two housemaids) and ‘a minimum of two high-class secretaries and two or three stenographers’ to support the public work from which she would otherwise have had to withdraw111 which was directly responsible for a socialist government’s decision to legislate.
(iii) The Law Reform (Husband and Wife) Act 1962
The common law would not countenance actions in tort between husband and wife. This rule had had to be modified112 so that a married woman could sue her husband (for example, in detinue or conversion) for the protection of her property. But the modification gave added weight to the view that the bar on tort actions was both anomalous and unjust;113 and the sense of injustice was increased as more and more spouses, injured by their partner’s negligent driving, found themselves debarred from recovering compensation from the insurance company.114 It seemed insulting that a wife seriously injured in this way should be able to get compensation for the damage done to the dress she was wearing,115 but (p.109) not for her (perhaps seriously disabling) personal injuries.116 The combination of powerful academic criticism,117 evidence of practical hardship, and lack of any opposition from major insurance interests,118 suggested that it should not be difficult to bring about reform; and in March 1959 Lord Chancellor Kilmuir119 referred the matter to the Law Reform Committee.
The Committee found the problem rather more difficult than had been assumed. The rule had its origins in the common law doctrine that husband and wife became one person,120 but however unrealistic the legal unity of husband and wife might have become, there was still ‘a genuine unity of the household which should be protected against anything likely to undermine it’.121 More generally, there were fears that litigation between husband and wife would be ‘unseemly, distressing and embittering’.122 As the Committee put it—
‘We think that to allow complete freedom of action in tort would be undesirable as a matter of general social policy. The strains which are liable to be set up and the troubles which are liable to arise when two people are living together in the constant close proximity of marriage produce a situation that should not be regarded merely from a narrow legal point of view. If either spouse were able without let or hindrance to bring an action in tort against the other in respect of injuries of a personal nature, it might easily lead to harmful results. Litigation in respect of petty acts of negligence in the domestic sphere would certainly not be conducive to the continuance of the marriage and would, we think, do nothing but harm.’123
Other, apparently more technical, difficulties surfaced. For example the protection given to a wife against being evicted by her husband from the matrimonial home was sometimes124 attributed to the fact that he could not sue her in trespass after he had terminated her licence to remain. If that were (p.110) correct,125 to allow spouses an unrestricted right to sue one another in tort would have disastrous consequences. More generally, the Committee was impressed126 by the fact that the court exercised a wide and flexible discretion127 in dealing in private with applications raising issues of title to or possession of property under s. 17 of the Married Women’s Property Act 1882; and it was reluctant to allow questions of the parties’ rights to property—‘notoriously difficult to disentangle … and … not really capable of being satisfactorily decided by the application of strict rules of law’128—to be dealt with in the same way as disputes between strangers.
The supposed technicalities concealed central issues about matrimonial property, answered by case law and legislation only many years later.129 Not surprisingly, the Committee was for long divided;130 and the Secretary feared that it would be impossible to produce a unanimous Report.131 But eventually a compromise was agreed:
1. In the case of torts not affecting the title to or possession of property, either spouse should be able to sue the other as if they were unmarried.132 But this should be ‘without prejudice to’ any right which a deserted wife may have to remain in the matrimonial home;133 and the wife should lose the right given her by the Married Women’s Property Act 1882 to sue her husband in tort for the protection of her separate property.134
2. All disputes relating to title to or possession of property should be dealt with under s. 17 of the Married Women’s Property Act 1882.135
3. In order to minimise the risk of the courts being used to air petty grievances between husband and wife,136 the court should have power to stay an action if, having regard to all the circumstances including the conduct of the parties and the nature of the matter complained of, the judge was satisfied that the (p.111) complaint lacked substance or that it was not in the interests of the parties for the action to proceed.137
Translating these recommendations into the language of an Act of Parliament proved remarkably difficult. For example, everyone agreed that there must be some fetter138 on the right of aggrieved spouses to bring their petty grievances before the court139 but there was little agreement on what the fetter should be.140 The Law Reform Committee had proposed giving the court power to stay actions, but to require a court to decide whether it would be ‘in the best interests of the parties’ to allow the action to go ahead (as the Law Reform Committee had recommended)141 might require it142 to ‘assess the future prospects of the parties’ marriage’ and even to require the court to act as a kind of reconciliation tribunal.143 In the end it was decided that the court should be empowered to stay proceedings if ‘no substantial benefit would accrue to either party from the continuation of the proceedings’.144 The reader may feel that this was not really145 ‘much narrower and more precise’146 than the criterion put forward by the Committee, and it is impossible not to sympathise with the draftsman who engagingly admitted that he and the officials ‘don’ t quite know what we do mean’ but had simply to do their best.
At what is apparently a more technical level, the Government refused to accept the Committee’s recommendation that disputes about title and possession of property be brought exclusively under the (supposedly discretionary) (p.112) Married Women’s Property Act 1882, s. 17.147 Instead the Act gave the court a discretionary power to stay tort proceedings if the questions in issue could ‘more conveniently be disposed of’ on a s. 17 application.
At one level these disputes may be thought to demonstrate the futility of much of the enormous volume of skilled bureaucratic effort put into the legislative process: there is overwhelming (if only anecdotal) evidence that actions in tort between husband and wife are only brought in cases where the real defendant is an insurance company, and most solicitors and district judges cannot recall ever having been faced with threats of action in any other circumstances. But before dismissing the lengthy discussions on the precise terminology of the 1962 Act as a time-wasting irrelevance, it should be noted that in the United States tort actions—and especially actions for intentionally inflicting emotional distress148—between husband and wife have become common, often in an attempt to secure the financial benefits denied by the courts’ refusal to take matrimonial conduct into account in settling the financial outcome of marital breakdown.149
The unity doctrine a long time dying
In 1937150 the Court of Appeal declared that the Law Reform (Married Women and Tortfeasors) Act 1935 made a ‘clean sweep of the old fiction of our common law that a woman on marrying became merged in the personality of her husband and ceased to be a fully qualified and separate human person’. But in truth this was far from the case. Even after the 1962 Act had been put onto the statute book further statutory reform (notably the Domicile and Matrimonial Proceedings Act 1973,151 providing152 that a married woman’s domicile should no longer automatically be the same as her husband’s but rather should be ‘ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile’) was needed to effect a total(p.113) juristic severance between spouses; whilst the much criticised153 rule154 aggregating the spouses’ income for income tax purposes155 lingered on until 1990.156 But the final quietus for the unity doctrine was given by the courts in litigation (appropriately ‘bidding fair to rival in time and money the story of Jarndyce v. Jarndyce’)157 stemming from the breakdown of relationships between parent and child. There was an action for conspiracy; and the courts rejected a defence that for this purpose husband and wife had to be treated as one person and thus could not be guilty of a tort158 based on the collaboration of two or more. Oliver J declined159
and in the Court of Appeal Lord Denning spoke eloquently of the contrast between mediaeval and contemporary England. The maxim that husband and wife are one was (he said)
‘… to apply … a medieval axiom which was never wholly accurate and which appears to me now to be as ill-adapted to the society in which we live as it is repugnant to common sense’
‘a fiction then. It is a fiction now…. Nowadays, both in law and in fact, husband and wife are two persons, not one. They are partners—equal partners—in a joint enterprise, the enterprise of maintaining a home and bringing up children. Outside that joint enterprise they live their own lives and go their own ways—always, we hope, in consultation one with the other, in complete loyalty one with the other, each maintaining and deserving the trust and confidence of the other. They can and do own property jointly or(p.114) severally or jointly and severally…. They can and do enter into contracts with others …, and can be made liable for breaches just as any other contractors can be. They can and do commit crimes jointly or severally and can be punished severally for them. They can and do commit wrongs jointly or severally and can be made liable jointly or severally just as any other wrong-doers. The severance in all respects is so complete that I would say that the doctrine of unity and its ramifications should be discarded altogether, except in so far as it is retained by judicial decision or by Act of Parliament.’160
And so the doctrine of unity passed into history. The doctrine of separation of property was firmly established. The Victorian campaigners’ reform had achieved what they wanted.
It is impossible to deny that this outcome better reflects the twentieth century personal relationship of husband and wife. As a High Court judge161 had put it in 1930:
‘Husbands and wives have their individual outlooks. They may belong to different political parties, to different schools of thought. A wife may be counsel in the courts against her husband. A husband may be counsel against his wife. Each has a separate intellectual life and activities. Moreover … the modern notion is that it is one’s right to assert one’s own individuality…. We are probably completing the transition from the family to the personal epoch of woman.’
The consequences of separation of property reappraised: institutionalised inequality?
So far, so good. But husband and wife still normally lived together, under the same roof. How well did separation of property reflect their expectations? In 1952 the eminent comparative lawyer, Otto Kahn-Freund162 sounded a cautionary note:
‘… husband and wife face each other in matters of property like strangers. The fact that they are husband and wife has no effect on their property. Nothing is by law ‘theirs’; everything … is in the absence of express agreement to the contrary, either ‘his’ or ‘hers’. Sociologists must decide whether this legal rule reflects the mores and ideas of the people.’163
That separation of property would not achieve justice for married women in the conditions prevalent in the second half of the twentieth century had already (p.115) begun to appear during World War II. As Professor OR McGregor164 was to put it:165 the nineteenth century reforms had
‘unintentionally institutionalised inequality in the economic relations of husbands and wives. By preventing husbands getting their hands on their wives’ money, the statute denied wives rights in their husband’s money. And in the real world, it was mostly the husbands who had the money’.
The beginning of the move for further reform of family property law—or at least of official notice being recorded of dissatisfaction with the consequences of the separation doctrine—can be dated precisely. On 6 May 1943 Judge Hirst, sitting in the Oxford County Court, gave judgment for Mr John Blackwell166 in his claim for the £103.50 which his wife had deposited in her account with the Oxford Co-operative Society. The law (said the Judge) was quite clear: if a wife made savings (as Mrs Blackwell had done) from a housekeeping allowance the savings and any articles bought with them belonged in law to the husband unless it could be proved that he had intended the money as a gift.167
Perhaps Mr Blackwell was surprised to find his case reported in The Times and other newspapers; and he would certainly have been surprised to find it taken up by Dr Edith Summer skill168 and others as exemplifying the law’s injustice to married women, and even more surprised to find that a quarter of a century later his claim was used in the House of Commons by a Conservative MP169 to illustrate the need for wide-ranging reform of the law of family property.170 The case was taken to the Court of Appeal;171 but the efforts of the two women barristers instructed by the woman solicitor acting for the wife172 failed (p.116) to convince any of the three (male) judges that the law was other than totally clear173 and in the husband’s favour.
A ‘novel and dangerous element in matrimonial relations’?174
This ruling prompted Dr Summer skill and the Married Women’s Association to start a campaign of meetings175letters176 and parliamentary questions.177 Eventually, the Association put forward its Equal Partnership Bill giving spouses the right to an equal share of the family income in recognition of their mutual services to the family; and the Bill conferred a wide jurisdiction on the court to decide how the family income should be allocated ‘for the necessary domestic expenditure’.
The Government178 was evidently appalled179 by the extent of what was proposed; and preferred to concede, at least in private,180 the case for measures (p.117) confined to equal entitlement to the household savings and furniture. But no action was taken; and paradoxically the return of a Labour Government in 1945 seems to have brought Government involvement in the issue to an end,181 possibly because Edith Summerskill (the campaign’s most persistent parliamentary voice) accepted ministerial office and thereby disqualified herself from public campaigning.
Labour ministers certainly showed little sympathy for the women’s cause when the issue resurfaced in 1951; and the Cabinet’s Legislation Committee reacted with apparent hilarity182 to the Deserted Wives Bill introduced by Mrs Irene Ward183 and others. This would have given the court power to transfer statutory tenancies and to apportion chattels between the spouses if (but only if) the applicant had obtained a magistrates’ maintenance order on the ground of desertion. But the Lord Chancellor’s officials were much more sympathetic than the Ministers they had to serve: the Bill (they thought) might have been prompted by a real grievance.184 The Attorney-General advised that the Bill should be condemned ‘with faint praise’ but not rejected entirely;185 and the Lord Chancellor’s officials made sure that the terms of reference of the Royal Commission on Marriage and Divorce (eventually set up in September 1951) extended to the law relating to ‘the property rights of husband and wife, both during marriage and after its termination’.186 Time had been successfully bought. But the fact that English law did not recognise the household as a unit for the ownership of property increasingly seemed to be a defect, rather than a virtue. As Sir Leslie Scarman187 was to put it in 1971, ‘Married women are not single women. They live with and for their husbands and children in a unit known as the family, which it is the policy of the law to cherish and support’.188
(p.118) Changing economic conditions
The feeling that something had to be done was reinforced by court decisions which exposed the law’s failure to deal with changed economic conditions. The war-time and post-war housing shortages were particularly significant. Nearly one in three houses had been destroyed or damaged during World War II and virtually none had been built. There were stringent controls intended to protect tenants—and in the late 1930s very few workers’ houses were owner occupied189—from exploitation. In effect, the statutory tenant’s rent could not be increased nor could his tenancy be terminated. The result, paradoxically, was to make it very difficult for a wife forced to leave her husband to find anywhere to live: property owners increasingly found letting houses an unattractive proposition and there was a dramatic fall in the availability of accommodation to rent.190 In 1939 court ordered periodical payments would have enabled a wife to rehouse herself in leasehold property. In 1945 that was no longer true.191
The shift in preference to buying rather than renting, combined with the scarcity caused by the lack of new building, no doubt contributed to the inflation in owner occupied house prices. This of course brought windfall gains for people who had bought houses before the war,192 but very often the wife found that the title to the property was in the husband’s sole name (perhaps because it was ‘common knowledge’ that a building society would at that time be ‘more inclined … to have the husband as the mortgagor than the wife’)193 so that she had no share in the gain. If the marriage broke down, the court had no (p.119) power to order a transfer of the house (or any other capital).194 As Lord Wilberforce was to recognise in National Provincial Bank Ltd v. Ainsworth,195 once the wife lost possession of a house, the process of acquiring another place to live could be painful and prolonged.
Judicial activism? Three legal issues
Three main issues came before the courts. First, what was to happen if a deserting husband left his wife in the home of which he was a statutory tenant? This was quickly and satisfactorily resolved. In 1950196 the Court of Appeal unanimously held that the wife continued the occupancy protected by the Rent Acts, and that neither the husband nor the landlord could turn her out provided that she continued to pay the rent and to comply with the other terms of the tenancy.197
The second issue was how far similar protection was available if the deserting husband owned the house. The courts had little difficulty in deciding that a husband could not legally turn an innocent wife out of the home198(although the identification of the legal principle upon which this protection could be (p.120) based proved much more troublesome).199 But there was a long controversy about whether her right to remain in occupation—the so-called ‘deserted wife’s equity’—was capable of binding a third party (such as a mortgagee to whom the husband had charged the property). Here Lord Justice Denning’s view that the rights of a wife in possession or actual occupation200 were binding on anyone dealing with the husband was doctrinally much less securely founded, and was seen by conveyancing lawyers as a threat to the security of property transactions.201 For many years the law remained uncertain.202
(p.121) The third and fundamental issue only came to prominence rather later; and a former President of the Probate Divorce and Admiralty Division203 was to use a telling204 and much quoted metaphor205 to describe the problem:
‘The wife spends her youth and early middle age in bearing and rearing children and in tending the home; the husband is thus freed for his economic activities. Unless the wife plays her part, the husband cannot play his. The cock bird can feather his nest precisely because he is not required to spend most of his time sitting on it.’
In 1943, it was this division of function which led the Married Women’s Association to claim the right to an equal share of the family income in recognition of the wife’s services in the home and the community. A decade later it was clear that the claim could not be confined to income: the real injustice was that the wife often had no share in the capital invested in the family home.
In 1934 husband and wife bought a house for £460. The wife paid the deposit of £29 required by the Building Society, but the legal title was taken (apparently as the Building Society required) in the husband’s sole name. The husband paid £151 off the mortgage debt before the outbreak of war in 1939. Thereafter, whilst he was away serving in the merchant navy, the wife paid off the rest of the loan (£280) out of her earnings. In 1951 they separated. The house was sold for £2,117 (some £38,000 in year 2000 values); and the question the court had to answer on the wife’s application under s. 17 of the Married Women’s Property Act 1882 was how that should be divided. The County Court judge held that the wife should get 29/460 of the proceeds (ie the proportion which the deposit she had paid bore to the total purchase price) plus (p.122) the £280 which she had paid off the mortgage debt,208 and the husband should have the rest.209
The fact that over the years house prices210 have risen much more than inflation211 would have caused serious injustice to the married women who had no legal entitlement to any share; but the injustice was all the more dramatic because house purchase was in the years after World War I usually financed by borrowing; and in the rising markets prevalent since the end of World War II the effect of what is called ‘gearing’212 is dramatic. The Rimmers put up £29 in cash, and (if they had not reduced the mortgage) would have got back £1,686213 when the house was sold. Their £29 ‘investment’ had thus appreciated by a factor of nearly 60, 12 times the increase in value of the house (and more than 20 times the increase in retail prices).
The injustice of holding that the whole of such a gain should belong to the husband was obvious,214 but for many years it was mitigated by the exercise of the power given to the court by s. 17 of the Married Women’s Property Act (p.123) 1882 to make ‘such order as it thinks fit’ on an application to determine questions of title to or the possession of property. The courts, aware of changing economic factors, did not simply215 give effect to the parties’ strict legal rights;216 but were prepared to apply what Lord Evershed in the Rimmer case called palm tree justice. In each case, he said,217 ‘the question is … what is the fair and just answer to be given to the question posed, having regard not merely to what occurred at the time when the property was originally purchased but also having regard to the light which the conduct of the husband and wife throws on their relationship as contributors to the acquisition of the property which was their joint matrimonial home’. Moreover, ‘the old established doctrine’ that equity leans towards equality was peculiarly relevant in resolving disputes between spouses. Accordingly in Rimmer the right solution would be to divide the proceeds of sale equally between the parties (rather than seeking to apply the conventional understanding of a resulting trust and dividing the proceeds between the parties in proportion to their contributions to the purchase price—an exercise all the more artificial and difficult in cases in which a large part of that sum has been borrowed from an outside source).
Statutory reform needed?
(i) The Report of the Royal Commission on Marriage and Divorce (1956)218
The law was evidently uncertain and, as we have seen, the subject of matrimonial property rights was in 1951 deliberately included in the terms of reference of the Royal Commission on Marriage and Divorce (set up in 1951). The Commission was taking evidence219 when the Rimmer decision was made; and (p.124) the majority of witnesses thought the law was unfair to the wife.220 But the Commission’s attitude was, in this as in other respects, conservative. It concluded that the law did not always sufficiently recognise the importance of the wife’s contribution to the joint family undertaking, and that ‘real hardship’ could occur.221 The Commission therefore accepted the necessity for some amendment of the law but in deciding on appropriate remedies thought it ‘essential’ to ‘keep in mind, first, the practical limitations of any attempt to legislate in a matter of social policy,… secondly, the vital consideration that so far as possible the law should be kept out of the intimate life of the family’, and thirdly the need ‘to guard against the risk that substantial injustice may be done to husbands as a result of measures designed to alleviate the hardship which some wives may suffer’.
This scarcely sounds like a prelude to proposals for radical reform.222 The Commission did recommend that savings from housekeeping money should be deemed to belong to husband and wife equally, and made a number of other proposals for minor reform.223 But a majority of the members rejected proposals for any statutory community of property regime224 (even in a limited form, (p.125) confined to the matrimonial home and furniture).225 The Commission did however recommend giving a spouse a statutory right of occupation of the family home which could be protected226 against third parties subsequently dealing with the property; and it recommended that the divorce court should have extended powers to deal with occupation rights227 and to prohibit dealings with the matrimonial home.
(ii) The impact of case law, 1956–1971
The immediate public (and parliamentary) response to the Royal Commission’s report focussed on possible reform of the ground for divorce; and although Ministers wanted to avoid being exposed to criticism for leaving the work of such bodies ‘for too long unattended’ the Lord Chancellor’s Officials quickly found that there was no quick fix in the Commission’s recommendations about property rights of husband and wife. The subject in general, and in particular the Royal Commission’s recommendations about the rights of a deserted wife in the matrimonial home’,228 bristled with difficulties; and little of substance was done to prepare legislative solutions.229
Three decisions of the House of Lords delivered in the years between 1965 and 1970 demonstrated not only the unsatisfactory state of the law but also that (p.126) legislation would be necessary to bring about any significant change. First, in National Provincial Bank Ltd v. Ainsworth230 the House of Lords unanimously and convincingly held that rights to occupy the matrimonial home flowing from the status of marriage were purely personal and could not, as a matter of law, bind third parties.231 This decision vindicated, after almost a decade, the Royal Commission’s view that protection of the wife’s rights could not confidently be left to the courts, and that it would be necessary to lay down in a statute the circumstances in which a wife should have the right to stay in the matrimonial home.232 Secondly, in Pettitt v. Pettitt233 the House of Lords unanimously held234 that s. 17 of the Married Women’s Property Act 1882 was purely procedural in scope. Issues of beneficial entitlement between husband and wife had to be determined ‘on the general principles of law applicable to the settlement of claims between those not so related, whilst making full allowances in view of that relationship’;235 and the court had no power to vary236 spouses’ existing property rights.237 Finally, in Gissing v. Gissing,238 the House of Lords held that a wife who had divorced her husband on the ground of his adultery after a 25-year marriage was not entitled to any beneficial interest in the former matrimonial home. Such cases were governed by the doctrines of implied, resulting and constructive trust, and ‘family assets’ were not a special class of property to which special rules for determining title applied. On the facts of the (p.127) case, the wife failed because she could not prove that it was ever intended she should own a share of the home.239 The fact that it was the wife who had persuaded her employer to give the husband his job and that it was the employer who (possibly influenced by the wife’s faithful services over 20 years) gave the husband a loan which made the purchase possible240 were not relevant.
The effect of these decisions was to confine the courts to resolving what Lord Denning241 had described as the ‘cold legal question’ of property entitlement. But the Law Lords had repeatedly emphasised the ‘urgent need’ for ‘comprehensive legislation’242 and in the long term these three decisions can be seen as a decisive influence for progress, even if that progress was achieved by techniques243 different from those for which reformers had campaigned.
(iii) The Matrimonial Homes Act 1967
The House of Lords gave judgment in the Ainsworth case on 13 May 1965, seven months after the return of a Labour Government244 committed to modernisation and reform. One of the first fruits of that commitment came with the creation of a body professionally committed to systematic law reform: the Law Commissions Act received Royal Assent on 15 June 1965.245 Lady Summer skill had extracted a promise246 from the incoming Lord Chancellor, Gerald Gardiner that he would co-operate in providing a draft Matrimonial Bill; and he invited the Law Commission to assist.247
(p.128) Unfortunately, it soon became apparent that there were serious problems to be resolved in translating the Royal Commission’s recommendations into detailed legislation. For example: should protection of the wife’s right to occupy be restricted to cases where the husband had deserted her? Should it depend on her having first obtained a court order? Was it practicable to give the wife protection against third parties given that any such measure would inevitably provoke what one of the Law Commissioners248 described as ‘screams from the highly organised hire-purchase finance industry’?249 Again, the Building Societies could be expected to be highly critical of any suggestion that the wife be substituted for the husband as the person liable to make the mortgage payments; whilst the Royal Commission’s recommendation that the court be empowered to transfer Rent Act tenancies from one spouse to the other involved interfering with a highly complex and technical part of the statute book—in order to gain only a very limited benefit.
On these and many other points there was what was tactfully described250 as ‘a measure of disagreement’ between the Law Commission and the Lord Chancellor’s Department; and the Law Commission was careful to distance itself, both in public251 and in private,252 from the Bill which was eventually253 ready for Lady Summer skill to introduce.
(p.129) It can be argued that the differences and difficulties had a positive outcome; and that exposure to what has been described254 as ‘the testing and refining process of argument’ greatly improved the Royal Commission’s proposals. Certainly the opening words of the Matrimonial Homes Act strike a positive note somewhat unusual in English statutory drafting. A spouse (and not only a wife) who has no proprietary interest in a matrimonial home none the less has ‘a right not to be evicted or excluded from the dwelling house or any part thereof by the other spouse except with the leave of the court’;255 and these rights of occupation constitute a charge on the other’s interest easily protected by registration against anyone subsequently dealing with the property. There is no need to prove that the other spouse is in desertion or has been guilty of any other specific wrong; and the court is given a wide adjustive power to extend the rights of occupation in cases of divorce or death256 and to make such order about the occupation of the home (and also such matters as payment of outgoings and liability for repairs) as it ‘thinks just and reasonable having regard to the conduct of the spouses in relation to each other and otherwise, to their respective needs and financial resources, to the needs of any children and to all the circumstances of the case’.257
There was of course scope for argument about whether the Act correctly struck the balance between on the one hand protecting the wife’s rights and on the other hand ensuring that the efficiency of the property transfer system was not impaired. In this context, a crucial issue was (and, at the turn of the century, remained) whether registration should be necessary to make the spouse’s rights bind a third party;258 but the fears voiced by some speakers259 in the debates that the legislation would impose a fetter on ordinary dealings with the family home have been proved unfounded.260 The Act, with many additional (p.130) refinements261 introduced over the years in the light of experience, continues262 to provide a comprehensive legal framework protecting the rights of a vulnerable wife. In only one respect did the 1967 Act not go as far as the 1956 Royal Commission would have wished: the technical problems encountered in giving any protection in respect of the furniture and other goods proved intractable, and the Bill in the end did not attempt to do so. The much needed reform in this area was only effected in 1996.263
The 1967 Act has provided practical relief for countless families over the years. Historically the importance of the Act is that, through the medium of the legal right of occupation which it created, it gave formal recognition to the claims of the family to a secure home as against commercial claims founded on traditional property rights. The Chairman of the Law Commission may have thought the 1967 Act was only a ‘stop-gap measure’;264 but in reality it established a principle from which it was impossible subsequently to retreat.
In one sense, therefore, the 1967 Act can be seen as exemplifying all that is best in one model of law reform—the growing recognition of a social problem, the determined efforts of well-placed individuals to bring about legislative action, the collaboration of experts such as the Parliamentary Counsel, the officials in the Lord Chancellor’s Office, and (in this case) the Law Commission. But it could also be taken as an exemplar of the defects of this process. A mass of technical problems (which could and should have been brought out by detailed prior consultation with experts in property transactions) had to be dealt with in great haste, and at one stage it appeared that the Bill would have to be abandoned because of difficulty in dealing with the problems which were raised. What, for example, were the duties of a solicitor acting on a house purchase in advising the wife265 about registering a charge?266 Was Lord Denning (p.131) right in suggesting267 that registration should be routine, whether or not there was any ground for suspecting that it would be necessary? What was to happen if a purchaser discovered the existence of a registered charge after agreeing to buy the property?268 And the Law Society, using the expertise of its members, was able to point to a host of even more technical difficulties: would the creation of a charge give rise to liability for betterment levy (a now long forgotten tax intended to secure the benefit of increases in value for the community)? Should the wife’s rights affect the amount of compensation paid for property compulsorily acquired by a local authority?269 The original four short clauses rapidly grew to eight, and the Matrimonial Homes Act as it came into force was a much more complex measure than the Bill originally introduced.
Rethinking and redrafting did not resolve all the problems. The Act gave rise to considerable difficulty270 (and hardship271 to the innocent); and in 1974 a High Court judge called for action to remove the
‘cumbersome uncertainties that the Act of 1967
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