The Court of Appeal has ruled that a woman who obtained a divorce pay-off from her husband on the basis that a legal charge over the matrimonial home was binding upon her could not later defend a possession claim by saying that it was not.
In what is believed to be the first case of its kind, the appeal court was required to consider the inter-relationship between matrimonial and possession proceedings.
The issue arose after Laura Walker argued in divorce proceedings that the charge was binding upon both her and her ex-husband. When First National Bank brought proceedings to obtain possession of the house, where Mrs Walker was still living, she changed her story and said that she was not bound because she had been subjected to undue influence by her husband in agreeing to sign the mortgage deed.
That argument succeeded before Judge Brandt in Colchester County Court in February 2000, but his decision has now been reversed on an appeal by the bank.
Allowing the appeal, Rix LJ said that the basis upon which Mrs Walker had obtained the financial order in the matrimonial proceedings meant that she was now to be treated as having abandoned her claim to set aside the charge. Her claim to have been unduly influenced by her husband must therefore fail.
First National Bank plc v Walker Court of Appeal (Sir Andrew Morritt V-C, Chadwick and Rix LJJ) 23 November 2000
Josephine Hayes (instructed by Davis & Co, of High Wycombe) appeared for the appellant; Rajinder Sahonte (instructed by Palmers, of South Woodham Ferrers) appeared for the respondent.
PLS News 24/11/00
