A lesson from the past

Divorce|April 9th 2015

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.

Image of 1950s coffee set by H is for Home via Flickr

Author: Stowe Family Law

Comments(10)

  1. Andrew says:

    Well now. You think the court should pretend that a couple have taken a formal commitment to each other when they have chosen not to do so.

    I don’t. If they want to they will, if they did they wanted to. If they don’t want to they won’t and if they did not they did not want to.

    It’s not rocket science.

  2. JamesB says:

    I agree with Andrew and I agree with John on this, their positions are not opposites but complimentary. I would add though that couples should have the opportunity to live together without the threat and danger of being ruined if the relationship breaks down as such situations are what is causing the difficulties, and increasing number of single person households, that John highlights, in this his example of non protection for person not on the deeds if no marriage.

    If there is no marriage then a spouse who has contributed to the house but is not on the deeds for example may be unfairly treated. If there is a marriage with children then the non resident parent for example may well be unfairly treated. The answer has to be a third way.

    The third way needs to be more co-habitation agreements (by default) or a change to the ancillary relief (financial divorce) law to resolve the problem, which I admit there is.

    Alternatively, Andrew may well have a point and it should be up to the couple to draw something up. Except to say most couples can’t afford to and the legal status of pre-nups is a grey area also.

    So, on balance, co-habitation agreements by default please and less ‘balance of probabilities’ and subjective, dodgy lawyer judgements based upon perceived ‘need and the ability to pay’, such judgements are discredited and why people are avoiding marriage, that and because pre-nups are so expensive.

    I would be interested to see what the marriage rate is in Scotland, compared to that in England and Wales, it is my bet that, because they have fairer laws, the marriage rate is higher because the threat of financial destruction upon divorce is not so large.

  3. JamesB says:

    A secondary point on this. Minority religious communities (including but not limited to Seventh day Adventists, Muslims, and Jews) often avoid the civil divorce courts in England and Wales. I have seen in each of them that the Priest, Rabbi, Imam, community, will put the details of the settlements and how people live together more equitably than what the rest of the communities have. That is not good, that so many think the law is bad. The law must be done and seen to be done.

    Actually I have seen more recently English people with their roots in this country completely beginning to avoid the courts and sort deals between them also. Recently two people I know walked from their lawyers offices and just did deals with their exes splitting the properties, so much for the need and the ability to pay nonsense, there is no way a court can tell that where there is rich parents and inheritance and pensions and trusts etc which make the law well dodgy. Better to have co-habitation agreements or pre nups please.

  4. JamesB says:

    The religious courts being Sharia and Din Beth or something and not sure on the other ones.

  5. JamesB says:

    wikipedia.org/wiki/Religious_law

    Perhaps canon or catholic law or something similar. Point is many, especially the minorities increasingly tend to avoid the laws in this area as it is so at odds with their culture and fairness.

    I believe in secularism and the laws in this country aren’t working in this area as explained in John’s post, therefore they need to be changed to allow more people to live together please.

    Would also get more work for lawyers so would be good for all to bring matters back to fairer courts and laws please.

  6. JamesB says:

    I could go on about things, like what the pre-nups should look like, but ultimately people should be able to write there own conditions when they move in together or get married rather than have the dodgy ones we have. In France they have this, in Germany, in NZ, in Scandinavia, in USA, in Canada, indeed the rest of the world, all have pre nups or co-habitation agreement choices of some form or another, we should have things fairer also. You go on about the Philippines being the odd one out, it is England and Wales that is at odds with fair and reasonable in this important area of family law.

    That’s it for now.

  7. JamesB says:

    I add Scotland to the list of places with co-habitation laws and pre-nups better than England and Wales.

    Perhaps if Labour or Conservative put something forward in this space (including scrapping the un-popular csa/cms) people might not vote so much whenever possible against them and more often for the, I think people would be more inclined to vote for them to if they had better (any) policies in these areas, I for one know I would, as it stands I cannot vote for either of them for precisely the reasons I have outlined here and I do not think I am the only one. I think the number of people supporting the SNP supports my arguments against the establishment’s (well dodgy) stance in this area, a change is needed in this area please.

  8. JamesB says:

    Not just SNP, other, not the main two, parties. A change is needed in this area please.

  9. Andrew says:

    The mainstream Jewish c0mmunities in the UK do not avoid the civil courts. The Batei Din (that’s the plural form you are looking for) are only concerned with the religious divorce without which the parties cannot remarry religiously: since 2002 the civil courts have had a procedure to old up a decree absolute until after the religious divorce. It is rarely needed: the fact that it can be done is probably sufficient to deter husbands from withholding the religious divorce to get better terms. Of course it does not help when the wife is the petitioner.

    The Batei Din do not meddle in questions of children or finance.

    I fear I cannot say as much for the Sharia courts. There is also a problem with Islamic and Hindu and very occasionally Jewish “marriages” which are carried out wholly informally and are not registered, and have no legal validity – not even as void marriages – whatsoever. Lady Warsi has urged in the House of Lords that they should be recognised but she is wrong. They should not. Marriage should be carried out through the law and registered accordingly.

    Rant over.

  10. Luke says:

    “I agree with Andrew and I agree with John on this, their positions are not opposites but complimentary.”
    =================================
    .
    I don’t know why you think that JamesB, they are not complementary at all. John Bolch is arguing that somebody (man or woman) could be snared by the courts without ever signing anything, and Andrew is arguing that in order for somebody to be liable and subject to the whim of a court decision to have their assets forcibly taken from them they actually have to sign a document (i.e. the marriage contract in this case) to allow that asset stripping to take place.
    .
    There is a far easier solution to avoid all this mess, have a compulsory class on relationships introduced to secondary schools explaining to young men and women that not being married means that you have no right to take the other person’s financial assets.
    .
    Why doesn’t the legal system push for this ? Simple, there is a LOT of money to be made by the legal system in introducing cohabitation law disputes, not much in secondary school classes. There are exceptions but very few people campaign for things that will make them poorer 🙂
    .
    Why doesn’t the government introduce this idea ? Forcible asset redistribution solves a lot of problems for them, they don’t care about how it affects individuals who can’t fight back, and there are vested interests with clout that are keen to promote it.
    .
    Follow the money…

Leave a Reply

Close

Newsletter Sign Up

For all the latest news from Stowe Family law
please sign up for instant access today.



Privacy Policy