Notes and Questions 9.1

Recognition of new property interests 353

9.2.2.The recognition of a proprietary right to occupy the matrimonial home

Under the common law a wife has long had a right to occupy the ‘matrimonial home’ (Gurasz v. Gurasz [1970] P 11). This is based upon the marriage contract and the now anachronistic view that a husband is under a non-reciprocal duty to maintain his wife, although it is arguable (but by no means established) that, to the extent that any such duty still exists under the common law, it should now be borne equally by both parties to the marriage (see the comments of Ewbank J in Harman v. Glencross [1985] Fam 49 at 58B–C).

The common law right was clearly a personal one owed by the husband to his wife and having no bearing on third parties. Thus a third party who acquired an interest from the husband did not need to concern him or herself with any right of occupation owed by the vendor to his wife. However, in a series of cases in the 1950s and 1960s, the Court of Appeal, under the Master of the Rolls, Lord Denning (in response to new social pressures stemming from the increasing incidence of marriage breakdown), engaged in a process which sought to elevate the personal right into a proprietary one by means of what became known as the ‘deserted wife’s equity’. Under this approach the wife’s personal right against her husband was transformed into an equity binding on most categories of third party from the moment he deserted her. As an equity the right, in broad terms, bound everyone with the exception of purchasers without notice (including constructive notice – see section 14.3.1 below) of the equity. As Gray has noted, the consequences of this common law development were simply ludicrous:

The deserted wife’s equity became a nightmare for conveyancers . . . impos[ing] an embarrassing onus of enquiry on any third party entering into any transaction (e.g. sale, lease or mortgage) with a man whose household included a resident adult female. In order to be safe from adverse claims to occupy, the purchaser had to inquire, first, whether that woman was the wife of the vendor/lessor/mortgagor and, second, whether the marriage (if there was one) was happy and stable. (Gray, Elements of Land Law (2nd edn), p. 159)

According proprietary status to the deserted wife’s right to occupy lacked the certainty and ease of identification necessary to enable the conveyancing system to work efficiently. While it is not uncommon for more than one party to have a right to occupy land (by reason of their contributions to the purchase price or arising under such doctrines as constructive trust and proprietary estoppel) interests arising in such a manner are not as susceptible to the same criticisms (although they are hardly immune – see Moffat, Trusts Law). The deserted wife’s equity, however, stretched the boundaries of property too far, and, in National Provincial Bank v. Ainsworth [1965] AC 1175, the House of Lords heralded a return to orthodoxy by roundly rejecting Lord Denning’s heresy.

Although justified, the conservative nature of their Lordships’ approach clearly failed to address the social issues which had caused the Court of Appeal to adopt such a radical stance in the first place. Lord Wilberforce, however, was adamant