Clutton v Clutton

Factual and Procedural Background

This appeal arises from a judgment of His Honour Judge Arthur at Birkenhead County Court on 11th July 1989, ordering the husband to transfer his entire interest in the matrimonial home located at 97 Capenhurst Lane, Whitby, Ellesmere Port, to the wife. The parties were married in 1964 and have two children: one adult child living independently and a younger child who has left school and lives with the wife. The husband, originally a bricklayer, purchased the matrimonial home in his sole name in 1970. The parties separated in April 1984, with decree nisi pronounced in November 1984 and made absolute in February 1985. The husband remarried in 1985, while the wife has a stable relationship but does not intend to remarry or cohabit.

The wife initially sought an outright transfer of the property or, alternatively, an order allowing her to remain in the home until death, remarriage, or cohabitation (a Martin order). The case was delayed until 1988 due to the husband's debt issues. The Registrar ordered a transfer subject to a charge in favour of the husband for £7,000, deferred until January 1991, alongside modest maintenance payments and partial costs awarded to the wife. The husband appealed, dissatisfied with the order, particularly the loss of his charge over the property.

Legal Issues Presented

1. Whether the court should order a clean break by transferring the entire interest in the matrimonial home to the wife without any charge or deferred interest to the husband.
2. Whether a Martin order, postponing the husband's interest until the wife's death, remarriage, or cohabitation, is appropriate in the circumstances.
3. Whether a Mesher order, postponing sale until the youngest child reaches majority, should be made instead.
4. The extent to which the principle of clean break under section 25A(1) of the Matrimonial and Family Proceedings Act 1984 should be applied in this case.

Arguments of the Parties

Husband's Arguments

• Requested a Martin order allowing the wife to occupy the matrimonial home for life, with the husband entitled to one-third of the proceeds of sale upon the wife’s remarriage or cohabitation.
• Asserted that the wife should not receive an outright transfer given his significant debts and the sole capital asset being the matrimonial home.

Wife's Arguments

• Requested a clean break, transferring the entire interest in the home to her.
• Argued that the long marriage, her limited income and earning capacity relative to the husband, and a genuine fear of "perpetual supervision" justified an outright transfer.
• Expressed contentment with the current relationship and no intention to remarry or cohabit, opposing a Martin order on grounds of privacy concerns.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the principle of the clean break under section 25A(1) of the Matrimonial and Family Proceedings Act 1984, emphasizing that the duty is to consider whether a clean break is appropriate rather than mandatory. It noted that while the Registrar’s order for maintenance payments conflicted with the clean break principle and was rightly varied, the deferred charge of £7,000 was not necessarily inconsistent with a clean break if it allowed the wife time to arrange finances without immediate sale.

However, the judge erred by refusing to make a Martin order, which both parties had originally accepted. The absence of reasons for this refusal was significant, and the court found that the refusal was manifestly unfair to the husband. The court acknowledged the wife's concern about privacy and "perpetual supervision" but considered that the husband's potential resentment if the wife remarried and remained in the home without any financial interest was a stronger factor.

The court reviewed relevant precedents supporting the Martin order as a fair mechanism to protect the husband's interest in the property upon the wife's remarriage or cohabitation, thereby balancing interests and preventing injustice. The court rejected the proposal for a Mesher order, reasoning that uncertainty about the wife's ability to re-house herself after the youngest child reaches majority made such an order inappropriate in this case.

Both judges concurred that the husband should retain a deferred interest in the property, with proceeds to be divided one-third to the husband and two-thirds to the wife upon the occurrence of death, remarriage, or cohabitation by the wife. This approach preserves fairness, flexibility, and respects the parties' circumstances and statutory principles.

Holding and Implications

The court allowed the appeal in part, setting aside the outright transfer order and substituting a Martin order.

The husband is entitled to one-third of the proceeds of sale of the matrimonial home, payable upon the wife's death, remarriage, or cohabitation. This preserves his financial interest in the sole capital asset of the marriage while allowing the wife to occupy the home until such events. The court awarded costs of the appeal to the appellant, subject to controlled enforcement, and legal aid taxation for the respondent.

No new legal principles were established; the decision reinforces the proper application of established family law principles balancing clean break considerations with fairness to both parties in property division.