• In the case of Bedson v Bedson [1965] 2 QB 666, while still married, the joint tenancy of a matrimonial home could not be severed for sale even if the couple lived separately.

Facts of Bedson v Bedson [1965] 2 QB 666

  • Husband, the D, used almost all of his life saving’s to buy a business and the freehold property above it with the purpose of providing a livelihood and a home for himself and his family
  • The home was conveyed as a joint tenancy between husband and wife (C), with express declaration of their beneficial interest as joint tenants in common
  • After issues in the marriage, the C left the home, but they did not divorce
  • C then applied for a court order as per section 17 of the Married Women’s Property Act 1882 to be able to sell the property with the proceeds divided between her and the D equally

Issues in Bedson v Bedson [1965] 2 QB 666

  • Despite not separating, should a court order be given for the C to be able to gain proceeds for her share of the home? The D would be given his share too?

Held by the Court of Appeal

  • Order of sale not awarded by a 2:1 majority. The husband was ordered to pay property occupation rent to the wife, who was barred from dealing with her share of the property whilst the husband occupied.

Lord Justice Denning

Having considered all aspects of the case, Lord Denning did not believe it to be right to allow the order of sale as:

  • “If we were to allow the wife here to insist on a sale, it would enable her to defeat both the contemplated purposes. On the one hand, to destroy the matrimonial home and thus remove any chance of the family coming together there again; and, on the other hand, to destroy the business by means of which the husband is still providing for himself and his children.” [679]

Further, considering the husband’s rights, Lord Denning disapproved of an order of sale

  • “The husband is not yet in a position to petition for divorce. The wife has not been in desertion for three years. He may, however, bring a suit for the restitution of conjugal rights; and on a decree being made, he will be in a position to ask that her interest in the property be transferred to him. Alternatively, at the end of the three years, he may bring a suit for divorce, and on a decree being made, he will be entitled to apply to vary the terms of the conveyance, so as to have the property vested in him free of the declaration of trust. If we were to order a sale now, it would effectually defeat these inchoate rights which he has. In this situation the husband should be allowed to remain in the property and continue the business so as to provide for the family as he is doing.” [680]

As an alternative, the D husband would pay rent

  • “Just as in Appleton v. Appleton, the husband had to pay a rent for the use and occupation of his wife’s house, so here the husband can be ordered to pay something to the wife in respect of her joint interest.” [682]

Dissenting Lord Justice Russell

Disagreeing with the fellow Lords, Lord Justice Russell believed there was no legal nor equitable basis to disallow the C selling her beneficial interest

  • “I am unable to accept the legal proposition of Lord Denning M.R. that when husband and wife are joint tenants of the legal estate in the matrimonial home and also beneficial joint tenants in respect of it, neither can, so long as one is in possession, sell his or her beneficial interest therein or otherwise sever the beneficial joint tenancy.” [690]