I’ve just come across a report of an old 1970 House of Lords case called Gissing v Gissing on Bailii (I found it under ‘Recent Additions’, although I think it may have actually been on Bailii for some time). Glancing through the report really is like stepping back in time, for two reasons.
Firstly -and I suppose some may find this a little sad – looking at the case is a nostalgic trip down memory lane. Not only was Gissing a leading case in my student days (and then still quite a recent one, I fear), but it also brings back memories of the great Lord Denning, who found in favour of Mrs Gissing in the Court of Appeal. Denning’s judgments were always a treat to read, although they were often controversial. I recall the endless learned arguments over his pronouncements, with some great legal minds horrified by his attempts to mould the law to achieve a fair result.
But Gissing is a step back in time for another reason. It tells of the bad old days when a wife who had been married for some thirty years could find herself left with nothing – in particular, without a share in the matrimonial home that was owned by her husband.
Let us look briefly at the facts of the case. Mr and Mrs Gissing were married in 1935 and they had one son, born in 1939. In 1951 a matrimonial home was purchased. As was the custom then, the property was conveyed into the husband’s sole name. The mortgage was therefore in his sole name, and was paid by him. Mrs Gissing did not contribute towards the purchase of the property or the payment of the mortgage, but she did spend the then not inconsiderable sum of £220 on furniture and laying the lawn.
In 1961 Mr Gissing left Mrs Gissing, to go to live with another woman. In 1966 Mrs Gissing obtained a divorce on the grounds of Mr Gissing’s adultery. Mrs Gissing then sought an interest in the house, initially seeking the entire property, but subsequently reducing her claim to a half share.
At first instance the court found against Mrs Gissing. She had not made, either directly or indirectly, any contribution towards the purchase of the property, and she was not therefore entitled to a share.
Mrs Gissing appealed. In the Court of Appeal Lord Denning argued that when a couple purchase a property in such circumstances there is a prima facie inference from their conduct that the house is a ‘family asset’ in which each is entitled to an equal share. He therefore awarded Mrs Gissing a 50 per cent interest in the property.
Mr Gissing appealed against that decision, to the House of Lords. Their Lordships did not agree with the approach of Lord Denning. Property rules were the same for everyone, irrespective of whether they were married. Mrs Gissing had not demonstrated that she had acquired an interest in the house under those rules. Accordingly, the house belonged solely to Mr Gissing, and his appeal was allowed.
Now, all of this may seem irrelevant to today. After all, spouses now make their property claims ancillary to the divorce, and the divorce court can adjust ownership of property irrespective of whose name is on the deeds.
But what if the parties never married? Now, the law has moved on since 1970, and I’m not going to go into the complexities of how the modern law might apply to Mrs Gissing today. The fact of the matter, however, is that someone in a situation similar to hers might still be left with nothing if they had not signed a marriage certificate. Can that be right? I would suggest that in the twenty-first century it cannot. Surely, society’s ideas of fairness have moved on in the last forty-five years and most people would now consider that it is not fair for someone who has devoted such a large portion of their life to their family to be left with nothing.
Gissing reminds us that the law needs to catch up with society. We need to have a proper system of property rights for cohabitants, so that unfairness can be a thing of the past for all who enter into family relationships.
The report of Gissing v Gissing can be read here.