Former matrimonial home occupied by divorced wife as part of maintenance arrangement–Mortgage instalments kept up by former husband–Oral contract held to have been made by which if wife left house she should have two-thirds of the net proceeds of sale–Contract within section 40, LPA 1925, but enforceable under doctrine of part performance
This was a
claim by Mrs Joan Frances Liddell, of Burnside House, Church Road, Paddock
Wood, Kent, against her former husband, Mr Clifford Graham Hopkinson, of 12
Ponsonby Place, London SW1, for £2,864, being two-thirds of the net proceeds of
the sale of the former matrimonial home in St Aubyn’s Close, Orpington, Kent.
Mrs C M Puxon
(instructed by Griffiths, Quinn & Gilmour) appeared for the plaintiff, and
Mr C Gray (instructed by Tucker, Turner & Co) represented the defendant.
Giving
judgment, SEBAG SHAW J said that Mr Hopkinson left his wife in 1963 after they
had been married for 12 years, and the two children remained with their mother
in the matrimonial home, a small house with a mortgage in St Aubyn’s Close,
Orpington. The marriage was dissolved in December 1966, and Mr Hopkinson paid
his wife £15 a week maintenance for herself and the children and continued
paying the mortgage on the house. Mrs Liddell met her present husband, who was
divorced himself and had custody of his four children, but they could not
marry, because she would lose her allowance and have to give up the house. Mr
Liddell’s house was too small for six children, and he could not afford a
bigger house. When Mr Hopkinson, who remarried in January 1967, heard of his
former wife’s attachment to Mr Liddell, he urged them to marry, because if she
gave up the house it would relieve him of a financial burden, and according to
her evidence he said he would give her two-thirds of the net proceeds from the
sale of the house. His story was that he did not agree to pay anything but said
he would make some financial contribution, provided assistance in buying a
suitable house was needed and provided arrangements were made in a proper form
between their respective solicitors. Two-thirds, he said, would be the top
limit of the contribution he could give.
Mrs Liddell
said that she did not then mention the proposals to her solicitors because she
and her former husband were on friendly terms and she thought the arrangement
did not need the intervention of solicitors. In April 1970 she married Mr
Liddell and went to live in a house in Paddock Wood which he had bought. It
cost Mr Liddell more than £2,000 in excess of what the other house had cost
him. Mr Hopkinson sold the house in Orpington, but the Liddells received no
money. A letter Mrs Liddell wrote to her solicitors about getting some of the
money supported her account of what happened. He (his Lordship) felt that Mrs Liddell
was a thoroughly honest and reliable witness, and that the squalid truth of the
matter was that once Mrs Liddell had left St Aubyn’s Close and the defendant
had sold the house, he saw no pressing reason to honour the undertaking he had
given. He prevaricated on all sides. On the facts, therefore, he (his Lordship)
found that there was an agreement with Mrs Liddell that Mr Hopkinson would pay
her two-thirds of the proceeds from the sale of the house if she vacated it and
got married. That raised the question whether the agreement was a contract. He
(Sebag Shaw J) thought that it was. In his opinion it was an oral contract for
the disposition of an interest in land within the ambit of section 40 of the
Law of Property Act 1925. It was enforceable under the doctrine of part
performance by reason of Mrs Liddell’s leaving, as she had done, the house she
had occupied throughout her married life with the defendant, thus giving up a
very substantial pecuniary advantage and lightening the financial burden on him
to a corresponding extent. That was quite clearly referable to a contract, and
there must be judgment for Mrs Liddell for two-thirds of the £4,296 net
proceeds from the sale of the house. That amounted to £2,864, plus 7 per cent
interest from the beginning of 1971.
The defendant
agreed to pay the money at the rate of £125 a month.
