Editorial Committee of the Cambridge Law Journal
The Family Home on DivorceAuthor(s): Kevin GraySource: The
Cambridge Law Journal, Vol. 41, No. 2 (Nov., 1982), pp.
228-231Published by: Cambridge University Press on behalf of
Editorial Committee of the Cambridge LawJournalStable URL:
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C.LJ. Case and Comment 229
now Matrimonial Causes Act 1973, s. 25 (1)). It is commonly
agreed that the major respect in which the pre- and
post-dissolu- tion circumstances must be made equivalent is the
provision of a
roof over the heads of all parties concerned. Two homes must
now
be found out of the economic resources which formerly provided
the basis for one common household. In the early cases under
the
reforming legislation the courts sought to achieve this
objective
through the flexible use of the power to award lump sums or
by
ordering a straightforward sale of the family home and division
of
the capital proceeds. Both spouses thus received capital
resources
on divorce in the form of either a home in specie or a lump
sum
sufficient at least to facilitate the acquisition of a new home
(see,
e.g., the seminal decision of the Court of Appeal in Wachtel
v.
Wachtel [1973] Fam. 72). This approach, the vital merit of
which
was to give both spouses some capital on divorce, was applied
even
where the value of the equity in the former matrimonial home
was
relatively small (see, e.g., Goodfield v. Goodfield [1975] Bar
Library
Transcript 269).
During the latter part of the 1970s, however, this pattern
of
order came to be modified. It became more common, especially
where the available equity was small, for the courts to impose
a
trust for sale upon the former family home, occupation pending
sale being reserved for the wife as the custodial parent. Sale (and
the consequent division of capital proceeds) was normally postponed
until the youngest child attained the age of 17 or 18 (the
so-called "
Mesher order ": see Mesher v. Mesher [1980] 1 All E.R. 126N). To
the objection that the husband was thereby being
" kept out of
his money," it was replied that a home is the least liquid form
of
asset imaginable and even if the parties had remained married
it
was unlikely that either would have enjoyed an uncovenanted
cash
bonus in the form of a liquidated capital share in their house
(see
Matrimonial Causes Act 1973, s. 25 (1), and Browne v.
Pritchard
[1975] 1 W.L.R. 1366, 1369, per Lord Denning M.R., 1371, per
Ormrod L.J.). The courts then began to postpone sale even beyond
the minority of the youngest child, on the ground that the home
might well be required as a base for the attenuated family long
after that date, e.g., if the children underwent further
education
or training or suffered unemployment on leaving school (see
Hanlon
v. Hanlon [1978] 1 W.L.R. 592, 597, per Ormrod L.J.). Finally
the
courts were moved to the view that in many cases it would impose
excessive hardship on the wife to overshadow her occupation
with
the threat of a sale pending at some stage in the medium- or
long- term future when
" she will be in a far worse position to fend for
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