BENTSI-ENCHILL V. BENTSI-ENCHILL

SARKODEE J.

Husband and wife, both legal practitioners, were married under the Marriage Ordinance Cap. 127 (1951 Rev.), on 21 August 1971. The marriage was dissolved on 12 December 1974, on the ground that it had broken down beyond reconciliation. During the subsistence of the marriage, at least for the first few years, the husband and wife lived and cohabited at No. 1 Palm Lands Estate, Sekondi, also called Villa Afrique. The husband purchased a flat in house No. 8/12, Lagoon Road, Sekondi, in which he later permitted his mother-in-law, the wife’s mother, who was without suitable accommodation to live gratuitously. Subsequently the wife left Villa Afrique and joined her mother at the flat.

The husband after the dissolution of the marriage requested the wife and her mother to leave the flat. The wife refused to give up possession, contending that the said flat was her matrimonial home and that she was entitled as of right to stay there with twenty-month-old Ekua, the child of the marriage of whom the wife by order of the High Court had custody. The basis of the wife’s refusal to leave, according to her, was that when she and her mother had wanted to leave even before the marriage broke down, her husband discouraged her from moving and indeed told her she could have the flat as her home. That it was as a result of the utterances and conduct of the husband that she moved into the flat a week after she had given birth to Ekua. Further during the pendency of the divorce proceedings she did not ask for alimony nor her share of property acquired during the marriage because her husband specifically told her that she could live in the said flat after the divorce. It appears the first time the husband asked the wife to give up the flat was on 31 March 1975. After repeated demands therefore, he caused a writ to be issued in the district court for an order of possession against the wife. It was as a result of this action that the wife brought this application praying for an order that she should stay in house No. 8/12, Lagoon Road, Sekondi, until the baby Ekua attained maturity.

The wife’s claim raises two distinct problems in matrimonial property law—that of ownership and title and that of occupation and use of a matrimonial home by spouses. Prima facie each spouse has a right to the other’s consortium which will normally be in the matrimonial home. Consortium is basically the sharing of a common home and a common domestic life. This means that as far as practicable the spouses must live together but differences may arise between them as to where the matrimonial home should be. This the parties are bound to settle by agreement: see Dunn v. Dunn [1948] 2 All E.R. 822, C.A. and also Hughes v. Hughes [1973] 2 G.L.R. 342. It is therefore wrong to say that it is the husband who has an absolute right to choose a matrimonial house. It is however accepted that in most cases the husband as the bread-winner, and who must necessarily live near his place of work, will have the last word but this does not mean that the wife’s interest must be overlooked. Each spouse in such a case will therefore have the right to use the house no matter in whom the legal or equitable title is vested: see National Provincial Bank Ltd. v. Ainsworth [1965] 2 All E.R. 472, H.L. At common law if the legal and equitable title to the matrimonial home is vested exclusively in the husband, the wife will be entitled to occupy it not only by virtue of her right to her husband’s consortium but also by virtue of her right to be maintained by him. The result is that if he deserts her and she thereby ceases to enjoy his consortium, she will be entitled to remain in the matrimonial home unless, by her own conduct, she forfeits that right as for example by committing adultery: see Jolliffe v. Wilmett and Co. [1971] 1 All E.R. 478, C.A. Equally where the husband has forfeited his right to her consortium by his own conduct the position will be the same. But the question of occupation, like that of title assumes a different form when the marriage breaks down and the parties assert adverse claims. I shall deal with this aspect presently.

In recent years the wife is very often a wage earner and makes contribution towards the common expenses by buying for and running the home. Judicial opinion today shows that the trend is to give credit to the wife for her services in kind as a housekeeper or for the use of her own income or savings in such a way as to enable her husband to use his for the purchase of a house. The beneficial ownership has been held to be in both husband and wife jointly: see Yeboah v. Yeboah [1974] 2 G.L.R. 114 in which Hayfron-Benjamin J. (as he then was) applied dicta of Lord Denning M.R. and Widgery L.J. in Smith v. Baker [1970] 2 All F.R. 826, C.A. and considered Pettitt v. Pettitt [1969] 2 All E.R. 385, H.L and Gissing v. Gissing [1970] 2 All E.R. 780, H.L. However, if one spouse buys property with his own money for their common use, for example a house, the other spouse does not necessarily have a proprietary interest in it. It seems for Gissing v. Gissing (supra) that a spouse who seeks to establish a beneficial interest in such property must show that the other holds the property on trust for the claimant. In Eves v. Eves [1975] 3 All E.R. 768, C.A., a mistress claimed that she had acquired an interest in a house in which she and Mr. Eves had lived. They found a house in a dirty dilapidated condition and Mr. Eves assured her that that was to be a house for themselves and their children. Mr. Eves told her that as she was under 21, the house could not be bought in joint names but he had led her to believe that she was to have some beneficial interest in the house. The appellant did a great deal of work to the house and garden. She stripped wall paper, painted woodwork and cabinets, broke up the concrete surface of the front garden. Together, with Mr. Eves she demolished one shed in the back garden and put up another. The intended marriage between them did not materialise, instead Eves married another woman called Gloria. The appellant successfully claimed a share in the former house. Lord Denning M.R., purporting to follow Gissing v. Gissing (supra), held that as Mr. Eves had gained the appellant’s confidence by saying that the house should be put in joint names, he became a trustee of the property holding part of the beneficial interest for the appellant because whenever a trustee had so conducted himself it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired and a constructive trust would arise. On the other hand in Pettitt v. Pettitt [1969] 2 All E.R. 385, H.L., the husband claimed to have done internal decorating, built a wardrobe, laid a lawn, constructed an ornamental well and a side wall in the garden. The husband brought a claim under section 17 of the Married Women’s Property Act, 1882 (45 and 46 Vict., c. 75), that he had a beneficial interest in the house in that the work he had done on the house had enhanced its value by £1,000. The House of Lords was not prepared to accept that there was an agreement between the parties that the husband was to acquire an interest in his wife’s home. The husband’s claim failed because as stated by Lord Reid at p. 391:

“In whatever way the general question as to improvements is decided the claim must fail. These improvements are nearly all of an ephemeral character. Redecoration will only last for a few years and it would be unreasonable that a spouse should obtain a permanent interest in the house in return for making improvements of this character.”

The wife does not get a share in the house simply because she cleans the walls or works in the garden or helps the husband with the painting and decorating. To qualify therefore it seems the claimant’s contribution must be substantial: see Fribrance v. Fribrance (No. 2) [1957] 1 All E.R. 357, C.A.

Where, however, the house is the property of both spouses, as is the common case today where both spouses are earning income and they pool their savings to buy a house in the husband’s name or in joint names, equip and furnish the house together and meet instalment payments (on mortgages) out of the family income, to which the wife contributes, the prima facie inference from their conduct is that the common intention is that the house should be their family house. In such a situation each has a right to occupy it and the court in its discretion will protect the interest of a spouse if that is necessary to give a joint owner a peaceful occupation. Such protection may be even more necessary where there are children: see Gurasz v. Gurasz [1969] 3 All E.R. 822, C.A. Such will be the situation so long as the marriage is a going concern but once it has broken down beyond reconciliation the court will order a trust for sale so as to enable both parties to realise their capital.

There is no doubt that property purchased by one spouse with his own money belongs to that spouse to the exclusion of the other. Therefore if the house is purchased out of the husband’s earnings the whole beneficial interest vests in him. Also if the parties set up a home in a house already owned by the husband, the wife will have no interest in it in the absence of express agreement. It was held in Nanda v. Nanda [1967] 3 All E.R. 401, that a wife’s right to her husband’s consortium does not entitle the wife to occupy any other property owned by him and he may obtain an injunction to restrain her from entering any such property. When the relationship of husband and wife has been terminated by divorce or where the marriage is annulled the wife’s right to her husband’s consortium and maintenance cease consequently, she has no right, in the absence express agreement, to remain in the former matrimonial home. Similarly the husband will no longer be entitled to remain in his wife’s home: see Vaughan v. Vaughan [1953] 1 All E.R. 209, C.A.

The wife in the instant application moved into the flat in house No. 8/12, Lagoon Road and because of the conduct and utterances of her husband she thought the flat had become her matrimonial home. She said she had wanted long before the marriage was dissolved to move out but her husband discouraged her and told her she could have the flat as her home. In July 1974, after Ekua was born the husband told her to go and stay in the flat after she had returned from hospital to Villa Afrique, where she lived with her husband. Whilst she lived in the flat her husband promised to renovate and furnish it and another flat at the top so as to give her the opportunity of using part of the flat as her chambers and also to enable the husband to have a room in the two flats to himself. During the pendency of the divorce proceedings she did not ask for alimony nor her share of the property acquired during the marriage because her husband told her she could live in the flat even after the divorce rent free. She says she is entitled to live in the flat at least during the minority of the child who is now twenty months old. The husband on his part says that he merely permitted his mother-in-law who had no suitable accommodation to live in the flat. When she lived there the wife regularly visited her but always returned to the Villa Afrique where she and her husband lived.

The flat in my view never became the matrimonial home of the parties. Even if it was, inasmuch as the marriage was terminated by divorce the wife ceased to have any right to remain there. It may be observed that nothing was said about payment of rent, rates or about repairs. It seems to me unreasonable to suppose that the husband intended to bind himself in such a way that his former wife would be entitled for the rest of her life or at least for well over eighteen years, no matter what happened, to remain in occupation of the house, and he paid rates and possibly money for repairs. From the circumstances, in particular having regard to the time the utterances were made, whatever promises made to her by her husband were not intended by him to create legal relations for life. She only had authority to stay in the house in her capacity as a wife during the marriage which authority came to an end when she divorced her husband. As a former wife her rights must rest on some other basis than that of her being the wife. She ought to have taken steps whilst the divorce proceedings were pending to safeguard her interest. She ought to have applied for maintenance and to have made arrangements with her husband to agree that he would not turn her out and she on her part to agree to accept a reduced sum for maintenance so long as she lived in the house. She failed to protect her interest and on the dissolution of the marriage she became a licensee with a revocable licence to stay in her former husband’s house. The licence has been revoked by the service on her of notice or by issue of the writ.

The husband prayed that if his former wife had no roof over her head the court may vary the custody order and grant him custody of the child of the marriage with reasonable access to his former wife if she so desired. The wife of course resists this. The primary concern of the court is to ensure that there are appropriate safeguards for a child’s general welfare, irrespective of the interests of the parents. Also the court as far as practicable must ensure that children are left in their own homes and with their natural parent or parents, as long as their psychological and emotional well-being are compatible with such a course. Normally the mother should have the care and control of young or sickly children (particularly girls) or those who for some other reason need a mother’s care. Ekua is only twenty months. er father has since married but the wife lives more than 100 miles away. It will not be in Ekua’s interest for her to be cared for by a baby sitter as suggested by her father. Her mother is a private legal practitioner who has made her mark at the bar. I believe this problem of accommodation is only a temporary set back and that given time she will be able to secure suitable accommodation for herself and little Ekua and give her the love and protection she would require. I will therefore not vary the order as to custody.

The licence to the wife having been revoked the only question remaining is what length of notice is required. Though a licence may be revoked, the licensee does not instantaneously turn into a trespasser. The wife must therefore be given time to remove herself and her belongings from the flat. Having regard to the length of time she has lived there with her mother who helped to look after the child of the marriage, I think a period of three months will be reasonable. I hold therefore that the wife is not entitled to the right she is claiming and she should in the circumstances be required to deliver up possession of flat No. 8/12, Lagoon Road, Sekondi, by 31 July 1976.

Appearances

APPLICANT (MISS BLAY) IN PERSON; W. A. H. AMARTEIFIO FOR THE RESPONDENT.