Published: Wed, 07 Mar 2018
Financial Matters During Marriage
These Family Law pages were originally prepared by the Law Department at St. Brendan’s Sixth Form College. They are no longer being updated and no responsibility is accepted for them by St. Brendan’s College or LawTeacher.net
Before the Married Women’s Property Act 1882 a woman’s personal property was transferred automatically to her husband on marriage; her real property came under her husband’s control but remained hers for inheritance purposes. According to Blackstone, writing in about 1765, the husband and wife were one person in law: the legal existence of the woman was suspended and incorporated into the personality of her husband. A husband could leave property to his wife in his will (because that would not take effect until after the marriage was ended by his death), but could not make a legal gift to her and was responsible for all her debts, whether contracted during the marriage or before.
Such rules have no effect nowadays, and for the past hundred years or so husband and wife have been treated as two legal persons each with his or her own property rights. Property owned by either spouse before the marriage remains the property of that individual (subject to any evidence of a contrary intention), and even property acquired after marriage (e.g. by earning, purchase, legacy or other gift) belongs prima facie to the person acquiring it, rather than to both together. There is no automatic “community property” rule in English law, such as exists in the laws of many American states, though there are various exceptions discussed below. Before going on, however, two areas of general law need to be addressed.
Trusts and beneficial owners
Trusts have been in existence for more than a thousand years, and even in pre-Norman times there are recorded instances of the conveyance of land to X to be held by him for the use of another. The common law disregarded such instructions and held the land to be the property of X absolutely, but from the early 15th century equity, acting in personam, began to compel the owners to carry out the terms of the use. The popularity of the use as a device for tax avoidance became such that in 1535 Parliament enacted the Statute of Uses, limiting their scope and requiring legal ownership to be transferred in most cases to the beneficiary of the use. The practice then grew up of transferring land to X for the use of Y in trust for Z, and when under the statute the land passed to Y it was still Z who derived the ultimate benefit.
The beneficial or equitable owner of property, therefore, is not always the same as the legal owner. If property is held on trust, the legal owner is bound to deal with it for the benefit of some of other person or persons, possibly including himself. The commonest illustration of this idea in the field of family law occurs where the matrimonial home is owned by just one partner on paper, but where both partners have enforceable rights as to its use and disposal.
A trust may be created in various ways: express trusts are fairly easy to recognise, and implied trusts may arise where a person’s words or deeds show the necessary intention. Resulting and constructive trusts are more difficult to grasp, though constructive trusts in particular have come to play quite an important role in family law, and statutory trusts come into effect in certain circumstances.
Co-ownership of land
The law recognises two forms of co-ownership: the joint tenancy and the tenancy in common. (In this context, the word “tenant” can describe an owner-occupier as well as a lessee.) Under the Law of Property Act 1925, the legal estate in land is always held by joint tenants (or a single tenant) on a statutory trust, but behind this trust there may be either an equitable joint tenancy or an equitable tenancy in common, according to the circumstances of the case.
For a tenancy to be recognised as a joint tenancy, the “four unities” must be present. There must be:
- unity of possession, each joint tenant being as much entitled to possession and enjoyment of any part of the land as any other tenant, and none having special rights;
- unity of interest, each joint tenant having an interest of the same kind and (if appropriate) of the same duration, and any rents or profits being divided equally between them;
- unity of title, each joint tenant having acquired his or her rights by the same conveyance or by simultaneous adverse possession; and
- unity of time, each joint tenant having acquired his or her vested interest at the same time.
The distinguishing feature of a joint tenancy is the jus accrescendi or right of survivorship. On the death of a joint tenant, his or her ownership and rights pass automatically to the surviving joint tenants and cannot be left by will or intestacy. This continues until there is just one survivor, who becomes the sole owner.
Under a tenancy in common, on the other hand, the tenants hold in “undivided shares”. Each tenant has a distinct fixed share in the property, which he can pass on by will or otherwise, as he wishes; these shares need not be equal in size. There must still be a unity of possession – each tenant-in-common has a right to enjoy any part of the property just as if he were the sole owner – but the other three unities required for a joint tenancy need not be present.
A beneficial joint tenancy can be converted to a beneficial tenancy in common by a process of severance. Such severance occurs automatically if a tenant acquires a further interest in the property, or sells or mortgages his interest to another, because the four unities are no longer present; it also takes place if one joint tenant unlawfully kills another, because he should not be allowed to benefit (by jus acrescendi) from his own crime. Severance can occur by the agreement (express or implied) of all the joint tenants, but s.36(2) of the Law of Property Act 1925 also allows any one joint tenant to give written notice to his co-tenants of his wish to sever his interest.
So far as personal property (i.e. property other than land and buildings) is concerned, married couples are in much the same position as any two other people except when the marriage breaks down. Each of them separately can buy and sell his or her own property – one can even sell property to the other – and there is no general presumption of joint ownership. Money in a bank account in the name of one partner is generally presumed to be that partner’s exclusive property, and if one partner buys property (including investments such as stocks and shares), the purchase is presumed (in the absence of other evidence) to belong to that partner alone.
Married Women’s Property Act 1964 s.1
If any question arises as to the right of a husband or wife to money derived from any allowance made by the husband for the expenses of the matrimonial home or for similar purposes, or to any property acquired out of such money, the money or property shall, in the absence of any agreement between them to the contrary, be treated as belonging to the husband and wife in equal shares. [This section is very rarely used, and the Law Commission has recommended its repeal.]
Joint bank accounts seem to create particular problems. The money in such an account is prima facie jointly owned by both partners, and although the courts today would probably apply this presumption, a number of older cases (not expressly overruled) suggest it may not take too much to rebut it.
Marshal v Crutwell (1875) LR 20 Eq 328, Jessel MR
A man H in poor health converted his bank account to a joint account, giving his wife P power to draw cheques. P did subsequently draw on the account for household expenses, but always at H’s direction. On H’s death, P claimed the balance of the account by right of survivorship, but the judge said H had never intended to give P ownership. On the evidence, the joint account was solely for convenience and created no presumption of advancement.
Thompson v Thompson (1970) 114 SJ 455, CA
An American H married a Chinese W and set up home in England. H transferred some money from his American resources to a joint account in England; this account was to be used to pay for the house, and would go to W in the event of H’s death. W subsequently sought a divorce and claimed a half share in the house and the balance of the account under the 1882 Act. Affirming the Registrar’s dismissal of her claim, Lord Denning MR said that where a joint account was supplied with money from each party so as to be a joint pool it was joint property belonging presumably to the parties in equal shares, as in Jones v Maynard above. But in the instant case the “joint account” remained H’s property: he provided all the money and did not intend W to acquire any proprietory interest until after his death.
For most couples, their most valuable asset is the matrimonial home, and given historic rates of inflation this can be a very valuable asset indeed. A house bought for £3000 in the early 1960s could easily be worth thirty times that today. The modern trend is for married couples to register the house in their joint names, but thirty or forty years ago that was less common, and equity may have to step in to resolve questions of beneficial ownership.
It is not so much in cases of divorce that legal analysis is required: the courts have extensive discretionary powers to redistribute legal rights and obligations on divorce: the breakdown of cohabitation causes far more legal problems. But a spouse who dies after a long and happy marriage, or goes bankrupt with creditors pressing for payment, or mortgages the family home to obtain a loan for other purposes, may leave questions of ownership to be resolved. For example, a spouse who can establish a beneficial interest in the matrimonial home may be able to resist a claim for possession should the legal owner default on the mortgage repayments.
The difference between resulting and constructive trusts is not altogether clear. Some judges and scholars have even denied its existence, but in Drake v Whipp (page 29 below) the Court of Appeal reaffirmed a distinction. Its importance probably lies in the fact that under a resulting trust the parties’ beneficial shares are proportionate to their contributions, while under a constructive trust the courts have wider discretion. In both cases, however, the parties’ intention is crucial.
In broad terms, a resulting trust may arise where a person other than the legal owner contributes to the purchase price. This person might be a spouse or cohabitant of the legal owner, or it might be some other relative such as a parent or (in the case of an elderly owner) an adult child. The contribution might be made at the time of the initial purchase, or (very often nowadays) might be made by meeting the mortgage repayments as they fell due.
Marsh v Von Sternberg  1 FLR 526, Bush J
A woman D became engaged to P, who moved into D’s flat. P and D then bought a long lease on the flat (at a discounted price because D was a sitting tenant); D paid the deposit of £5000 and P began to make repayments on the mortgage for the balance. When they split up, P sought a declaration that the flat was owned in equal shares, and D counterclaimed that it was entirely hers. The Registrar awarded P a 4% share, based on his actual repayments of £500 to date, but Bush J said on appeal that P should have a 25% interest based on the parties’ agreement (on the evidence) to share responsibility for the mortgage.
The courts’ attitude to constructive trusts has changed over the years. During the 1960s and 1970s Lord Denning MR in the Court of Appeal sought to establish the “new model” constructive trust giving the deserted wife almost automatically an equitable interest in the matrimonial home, but his attempts were blocked by the House of Lords. Some changes have since been made by legislation, but the modern doctrine depends largely on the parties’ supposed intentions.
Under s.37 of the Matrimonial Proceedings and Property Act 1970 (see below), substantial contributions of money or money’s worth, by either spouse, to the improvement of property belonging to either or both may entitle that party to such an equitable interest as the court may think just. This modifies but does not by any means eliminate the effect of the judgement in Pettitt.
Grant v Edwards  Ch 638, CA
D bought a house for himself and P, leaving P’s name off the conveyance ostensibly to avoid any problems during her imminent divorce proceedings. After a fire in the house they shared the insurance money equally, and when they split up P claimed a half-share in the house. Her claim succeeded: the Court of Appeal said P’s substantial contributions to general household expenses were well in excess of what would have been expected, and allowed D to meet the mortgage repayments; moreover, the sharing of the insurance money showed a common intention that she should have a half share. Whether D ever actually had such an intention is doubtful, but he was estopped by his representations from denying it!
Drake v Whipp  1 FLR 826, CA
P and D together bought an old barn, intending to convert it into a house for their joint occupation. P paid 40% of the purchase price and D paid 60%, but D subsequently spent a considerable amount on the costs of conversion before the property was finally conveyed to him. When P and D separated, P claimed 40% of the sale value on the basis of a resulting trust, but the trial judge took into account D’s subsequent contributions and awarded her only 19%. Allowing P’s appeal in part, the Court of Appeal said she should have a one-third share. Once a common intention to share the property had been established, said Peter Gibson LJ, the resulting trust was displaced by a constructive trust, and the court could exercise its discretion in deciding what share would be fair.
Where the matrimonial home is jointly owned, the situation may arise that the owners disagree as to what should be done with it: in the event of divorce, for example, one partner may want to sell the house while the other wants to keep it. In this case, s.14 of the Trusts of Land Act 1996 (which replaces and simplifies earlier legislation on this subject) allows either party to apply to the court, which can make any order it thinks fit. In particular, the court can declare the nature and extent of any person’s interest in the property, and can make orders requiring or prohibiting its sale, overriding a legal owner’s refusal to consent, &c.
In making any such order, the court is required by s.15(1) to have regard to factors including the settlor’s intention (where the trust was created by a strict settlement), the purposes for which the property is held, the interests of any child who occupies or might reasonably be expected to occupy the property, and the interests of any secured creditors. The Act came into force in January 1997 and has not yet generated any case-law of its own, but the Law Commission has expressed the view that many of the decisions based on s.30 of the Law of Property Act 1925 (which these two sections replace) are still relevant.
Quite separate from questions of legal or beneficial ownership is the right to occupy the matrimonial home. Under s.1(1) of the Matrimonial Homes Act 1983 and s.30(2) of the Family Law Act 1996 (which consolidated earlier legislation) a non-owner spouse has a statutory right to occupy the matrimonial home, and cannot be evicted by the owner unless the court so orders. Under s.2(1) of the 1983 Act or s.31(10) of the 1996 Act, such “matrimonial home rights” can be registered as a charge on the property, and once registered is effective against any third party who subsequently buys the property.
Under s.1(5) or s.30(3), a non-owning spouse with rights of occupation is entitled to pay rent, mortgage repayments and similar payments due from the owner, which must be accepted as if tendered by the owner. For example, a wife deserted by her husband can continue living in a flat let to the husband, and so long as she keeps up the payments of rent she has security of tenure under the Rent Acts and cannot be evicted without a court order.
A spouse with no legal interest in the matrimonial home, or a former spouse, or even a cohabitant, may apply to the court for an “occupation order” affirming her right to occupy and (if appropriate) excluding the other from all or part of the premises. This section can therefore be used inter alia in cases of domestic violence to exclude the violent partner (who may in fact be the legal owner). This matter is discussed in more detail in another chapter.
There are various ways of resolving a dispute between husband and wife as to the ownership of property. Since most such disputes arise in connection with divorce, a very common practice nowadays is to rely on the courts’ general power when granting a divorce to adjust property rights as seems appropriate. Disputes do arise in other situations, however, as for example when one partner is declared bankrupt and the creditors seek possession of his assets.
Married Women’s Property Act 1882 s.17 (as amended)
In any question between husband and wife as to the title to or possession of property, either party may apply by summons … to the High Court or such county court as may be prescribed and the court may, on such application …, make such order with respect to the property as it thinks fit. [Under s.39 of the Matrimonial Proceedings and Property Act 1970, such an application may be made up to three years after the marriage has been annulled or ended by divorce, and under s.2(2) of the Law Reform (Miscellaneous Provisions) Act 1970 a similar application can be made within three years of breaking off an engagement.]
Matrimonial Proceedings and Property Act 1970 s.37
It is hereby declared that where a husband or wife contributes in money or money’s worth to the improvement of real or personal property in which … either or both of them has … a beneficial interest, the husband or wife so contributing shall, if the contribution is of a substantial nature and subject to any agreement between them to the contrary … be treated as having then acquired … a share or an enlarged share … in that beneficial interest of such an extent … as may seem in all the circumstances just to any court before which the question … arises.
At one time, the common law rule was that a husband had a duty to maintain his wife, but acquired as his own all her property acquired before the marriage. The modern rule is that spouses retain their own property as described above, but have mutual obligations of financial support both during the marriage and (potentially) after it is ended by divorce. Cohabitants have no such obligations towards one another, though they do have financial responsibilities towards their children.
Windeler v Whitehall  2 FLR 505, Millett J
A woman P was the mistress of D; she looked after D’s house where they lived together, but made no financial contribution and played no part in D’s successful theatrical agency. When their relationship broke up P moved out and claimed a legal interest in the house and the business. Dismissing her claim, the judge said a husband has a legal obligation to support his wife even if they are living apart, but has no legal obligation to support his mistress even if they are living together.
As one might suppose, these mutual obligations of financial support are normally performed as a matter of course, without the intervention of the law. In most families, a working husband or wife contributes to household expenses, and generally provides a personal allowance for a non-earning partner. But where the marriage runs into difficulties – for example, where the parties live apart without formally divorcing, or where a violent partner is excluded from the matrimonial home by court order – it may be necessary for one spouse to assert legal rights of support against the other.
Under s.2 of the Domestic Proceedings and Magistrates’ Courts Act 1978 the magistrates can order one spouse to make financial provision for the other. Such an order may require periodic payments of any appropriate amount, and/or payment of a lump sum not over £1000, but the magistrates cannot by order change the ownership of other property.
Either party can apply for an order for periodic payments and/or a lump sum, on the grounds (set out in s.1 of the Act) that the other spouse:
- has failed to provide reasonable maintenance for the applicant, or
- has failed to make a propert contribution towards reasonable maintenance for a child of the family, or
- has behaved in such a way that the applicant cannot reasonably be expected to live with him/her, or
- has deserted the applicant.
In deciding whether to exercise their powers under s.2, the magistrates must have regard to all the circumstances of the case, first consideration being given to the welfare of any child under 18. They must also consider the income, earning capacity, property and other financial resources of each of the parties, to their respective financial needs and obligations, to their standard of living before the events giving rise to the application, to their respective ages and states of health, to the duration of the marriage and the contribution each partner has made (and is likely to make) to family welfare, and to the conduct of each party where it would be inequitable to disregard it. An order can be enforced by attachment of earnings (whether or not the payer has defaulted), or as a last resort by the issue of a distress warrant or committal to prison for contempt of court.
The magistrates also have power under s.6 of the Act to make a consent order for periodic payments and/or an unlimited lump sum, where the other spouse has agreed to make such payments and the order would not be contrary to the interests of justice. At one time there were significant tax advantages in making payments under such an order rather than voluntarily, but these advantages have largely vanished and consent orders are consequently now very rare. Where the parties have been living apart for three months or more by mutual agreement (i.e. neither has deserted the other), and one has been making periodic payments to the other during that time, the magistrates have power under s.7 to order the continuation of those payments. Again there were originally tax advantages in obtaining such an order, as well as a measure of security for the recipient, but these orders too are rarely granted nowadays.
Under s.27 of the Matrimonial Causes Act 1973 a party to a marriage can apply to the High Court or to a county court with divorce jurisdiction for an order for periodic payments and/or a lump sum for the reasonable maintenance of the applicant and/or a child or children of the family, if the respondent has failed to make provision for such maintenance. The court must consider the same factors as those set out in s.1 of the Domestic Proceedings and Magistrates’ Courts Act 1978. Such applications are very rare: there were only 71 in 1989, and subsequent judicial statistics reports do not identify them separately at all.
The parties to a marriage are of course free to make their own agreements about financial provision, and in the event of separation (short of divorce) may decide to formalise these agreements in a binding contract. Such a contract may be oral or written and is subject to the same rules of law (e.g. as to certainty, consideration, &c) as any other contract, but the courts will be particularly anxious to ensure there was no duress, misrepresentation or mistake involved in its making. Under s.34(1) of the Matrimonial Causes Act 1973 any term purporting to oust the jurisdiction of the courts (e.g. by preventing one party from applying for additional or alternative financial provision) is void, and s.6 of the Child Support Act 1991 requires a parent claiming any welfare benefit to authorise and assist in proceedings to obtain child support payments from the absent parent notwithstanding any private agreement between them.
A number of welfare benefits are available to support a family in financial need, including the following:
- Income support: is available to anyone who is in paid work for less than 16 hours per week, who is a lone parent, a carer, disabled, or sick and unable to work, but whose current income is below a predetermined level. A single person is entitled to £29.60 to £49.15 per week (depending on age), and a couple to £58.70 to £77.15 (ditto), with additional payments for single parents, children, and various special circumstances, but the benefit payable is reduced in line with the family’s income and savings. Income support is not available to anyone who works more than 16 hours a week (but see family credit below), is a full-time student, or has savings over £8000.
- Family credit: is intended to provide extra help for low-earning families with children. Where one parent (or a single parent) is working for at least 16 hours a week she can claim £47.65 a week, with an extra £10.55 if the claimant or her partner is working at least 30 hours a week. Further benefits of between £12.05 and £24.80 (depending on age) can be claimed for each child. No family credit is payable if the family has capital over £8000, and deductions are made if the family’s net weekly income exceeds £77.15 (though child care expenses up to £60 a week are deductible) or its capital exceeds £3000.
- Child benefit (no means test) is payable to a person responsible for a child living with them, or contributing significantly to the child’s maintenance. The child must be under 16, or 16-19 but still in full-time education, and the benefit is currently worth £11.05 per week for the eldest child (£17.10 where the claimant is a single person) and £9.00 for each subsequent child.
Under s.1(1) of the Child Support Act 1991, which came into force in 1993, each parent of a … child is responsible for maintaining him. An absent parent (that is, a parent other than the person with whom the child lives) can discharge this responsibility by making periodical maintenance payments as determined under the Act. The day-to-day enforcement of the Act rests with the Child Support Agency, which has the duty of assessing the appropriate amount of maintenance in any individual case (using statutory formulae with very little room for the exercise of disctretion) and, where necessary, enforcing payment.
A caring parent in receipt of income support or family credit (or certain other benefits) may be required to seek child support through the CSA, and benefit payments may be reduced for non-compliance unless the CSA believes the caring parent or the child would be at risk of harm. Other caring parents may apply if they wish: the existence of a maintenance agreement (no matter in what terms) does not preclude such an application unless the agreement was made before the Act came into force. For the purposes of the Act, the usual common-law presumption that a married woman’s husband is the father of her child does not apply: if he denies paternity, it will normally be necessary to prove it before an order can be made.
In determining the amount payable, the CSA takes into account the cost of maintaining a child, the income of each parent, and the costs of any other children either parent may have, and seeks to ensure that the absent parent does not have to pay more than 30% of his income and is still significantly better off than he would be on income support. New partners of either parent are not expected to contribute to the support of children who are not their own. The CSA has facilities for collecting and passing on payments, and for enforcing payment in cases where the absent parent is reluctant to comply.
The 1991 Act drastically reduces the role of the courts in child support matters, limiting them in practice to lump sum and property adjustment orders. Under s.15 and Sch.1 of the Children Act 1989, which survive the 1991 legislation, the court may make a financial support order against a parent of any child and may order such a parent to transfer to the child (or to another person for the child’s benefit) such property as the court may specify.
Re J (1992) Times 12/11/92, Eastham J
Following the breakdown of their relationship, a mother M sought an order under s.15 requiring her cohabitant C to transfer to her his interest in the joint tenancy of their home “for the benefit of the child”. The judge said he had no jurisdiction to make such an order except against the child’s parent: since C was not the child’s biological father, nor M’s husband, nor a person with parental responsibility for the child, he could not be regarded as a “parent”.
R v Secretary of State ex p W (1999) Times 19/5/99, Johnson J
Some time after ending cohabitation with a woman W, a man S sought and was granted (by consent) a parental responsibility order in respect of W’s two daughters, but subsequently denied paternity when questioned by the Child Support Agency. W then sought judicial review of R’s decision that he had no power to make a maintenance order without a judicial finding that S was in fact the father. Granting certiorari to quash the decision, the judge said the district judge at the original hearing could not properly have made the parental responsibility order in the circumstances unless he had been satisfied that S was the father, and that was sufficient “finding” for the purposes of the Child Support Act.
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