The court urged caution in a judge using his own experience of the property market by way of judicial notice: ‘[W]herever it is to be argued that the wife could find alternative accommodation for herself out of her share of the equity, whatever that may be . . there should be evidence put before the court to that effect. The unsupported assertions and speculations which are made in the course of argument in these cases are not satisfactory. It means the court has to use its own imprecise knowledge of the property market and may well make mistakes. So if it is going to be said that the wife could get alternative accommodation, let there be some evidence to that effect. Otherwise it will have to be assumed that it is not possible.’ The court upheld the right of a wife to remain indefinitely in a very modest matrimonial home against the claim of her former husband that it should be sold and the proceeds equally divided: ‘I appreciate the point he (Mr Aglionby, counsel for the husband) has made, namely that it is difficult for practitioners to advise clients in these cases because the rules are not very firm. That is inevitable when the courts are working out the exercise of the wide powers given by a statute like the Matrimonial Causes Act 1973. It is the essence of such a discretionary situation that the court should preserve, so far as it can, the utmost elasticity to deal with each case on its own facts. Therefore, it is a matter of trial and error and imagination on the part of those advising clients. It equally means that decisions of this court can never be better than guidelines. They are not precedents in the strict sense of the word. There is bound to be an element of uncertainty in the use of the wide discretionary powers given to the court under the 1973 Act, and no doubt there always will be, because as social circumstances change so the court will have to adapt the ways in which it exercises discretion. If property suddenly became available all over the country many of the rationes decidendi of the past would be quite inappropriate’
Judges:
Ormrod LJ, Stamp LJ, Sir John Pennycuick
Citations:
[1978] Fam 12, [1977] EWCA Civ 7
Links:
Statutes:
Matrimonial Causes Act 1973 25
Jurisdiction:
England and Wales
Citing:
Cited – Mesher v Mesher and Hall CA 1973
(Heard in 1973, but reported in 1980) The court gave a form of ancillary relief order allowing the party with custody of the children (even though both had remarried) to remain in the matrimonial home with them, the house only being sold on the . .
Cited by:
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 11 June 2022; Ref: scu.197923