Chapter 8 Mrs Gladys Hutchinson, Lord Upjohn, and the case of the bankrupt ‘spendthrift … ne-er-do-well and … waster’

Introduction

This chapter examines a bankruptcy case from the 1950s to see whether it qualifies as a ‘feminist judgment’ from a socio-legal perspective. It uses feminist and afterlives methodologies to investigate and contextualise Mrs Gladys Hutchinson’s life, experience, and role in Stevens v. Hutchinson [1953] Ch. 299. Upjohn J’s ruling meant that Mrs Hutchinson and the couple’s three children were able to stay in the matrimonial home at 29 Carr Lane, York. The judgment in Stevens v. Hutchinson should be viewed as a significant marker in the evolution of law within the realm of bankruptcy and the family home, a brief moment of positive concern for women that quickly passed.

Gladys Warburton was born in 1896 in York.¹ She married Henry Thornburn Hutchinson at the age of twenty in 1916 and they had three children, Enid, Yvonne and Raymond. The marriage continued until the death of Henry Hutchinson in 1960. Mrs Hutchinson is important because she was the successful second defendant in a 1953 case, Stevens v. Hutchinson.² Mrs Gladys Hutchinson was fifty-seven at the time of the litigation and the three children were adults.

Mr Justice Upjohn presided over Stevens v. Hutchinson on 24 and 25 February 1953 in the Chancery Division of the High Court in London. This first instance decision was a bankruptcy case that involved an application for an order for sale of the matrimonial home by a creditor of the debtor husband. The judgment creditor was owed £2,008 17s. 3d.

Though women had enjoyed equal status in land law since the reforms of 1925, in the 1950s it was usual for homes to be conveyed to husbands alone, making it harder for a wife to establish a share. Unusually, however, Mrs Hutchinson shared the property with Henry Hutchinson as tenants in common under a trust for sale. As tenants in common the couple were each entitled to their respective equal shares in the home as long as the trust subsisted, but once it came to an end the property would have to be sold and their entitlement would simply be in the proceeds of sale. This meant that, had Mr Hutchinson’s creditors taken possession, her home would have been sold and all she would get would be her half-share of the proceeds.

Stevens v. Hutchinson established that a deserted wife whose husband was bankrupt and whose creditor sought a sale could stay in the ‘matrimonial home’. This chapter characterises Stevens v. Hutchinson as a waymarker on the path of stakeholder interests in the family home on bankruptcy en route to the harsher Insolvency Act 1986 (IA1986) and Trusts of Land and Appointment of Trustees Act 1996 (TOLATA1996). It examines the thesis that Lord Upjohn (as he became), in deciding for the woman, was motivated by a desire to assist deserted wives, at the time a matter of concern for English society. Upjohn heard a number of cases in the realm of co-ownership of a family home where a mortgagee or creditor sought sale, and an occupier sought protection. In allowing Mrs Hutchinson to remain in her home, was Stevens v. Hutchinson a feminist judgment?³

The case

The factual background is a classic example of a situation that engaged feminist sympathies in the 1950s. The property, 39 Carr Lane, York, had been devised to Mr and Mrs Hutchinson in equal shares as tenants in common.⁴ The gift was made under the will of the husband’s father, dated 18 May 1944, and it was intended to provide a home for the couple. When Mr Hutchinson became bankrupt, one of his judgment creditors was appointed as a receiver in 1951 over his interest in the family home by way of equitable execution. The plaintiff creditor made an application to the court for an order for sale with vacant possession pursuant to section 30 Law of Property Act (LPA1925) as a ‘person interested’ so that he could recoup the judgment debt owed to him.

Upjohn refused to grant the order for sale.

First, in Upjohn’s view the creditor was not a ‘person interested’ for the purposes of section 30 by virtue of his position as a receiver. Section 30 meant a person interested in some proprietary right under the trust for sale. Section 30 stated that ‘any person interested may apply to the court’.⁵ But existing case law had established that a ‘person interested’ only referred to those who had a beneficial interest in the trust for sale – here, the husband and wife – not a creditor/receiver (who only had a personal interest).⁶ Upjohn decided the case on this point, stating, ‘A receiver so appointed is not, in my judgment, a person interested for the purposes of section 30.’⁷ This meant there was no need (or power) for Upjohn to exercise his discretion in favour of the wife.

Second, this was unregistered land⁸ and the appointment of a receiver, as Lindley LJ explained in Re Potts, operates as an injunction to stop the dispersal of the proceeds of sale of the property when it is sold before the receiver has taken his share.⁹ The receiver had no charge over the property (unlike a mortgagee, for instance) and his only interest was in the proceeds of sale when the property was sold. But the property could only be sold if the husband or wife asked for it to be sold and the court granted the sale. Upjohn held that the appointment of a receiver did not give the creditor a charge over the proceeds of sale of the property under section 195 of the LPA1925. Any such charge was confined to equitable interests in the proceeds of sale of land.

This brings us to the third and most important part of the judgment for the purposes of the feminist judgment critique being undertaken in this chapter. The third element of Upjohn’s decision was that it would not have been right, in the circumstances of the case, to make an order for sale. Mrs Hutchinson’s counsel had argued, among other points, that if the merits of the case were examined they were with the defendant, Mrs Hutchinson. He referred to Bendall v. McWhirter¹⁰ as authority for the proposition that the position of a deserted wife left in the matrimonial home had been considered and recognised by the courts.¹¹ Mrs Hutchinson gave evidence that the husband had been a spendthrift throughout the marriage, and that she had repeatedly lent him money. She contended that she had very little means or assets beside the house where she lived. Counsel submitted that in the circumstances it would be wrong to turn Mrs Hutchinson out of her home by ordering a sale.

Upjohn appears to accept this argument but he did not refer to Bendall v. McWhirter in his judgment.¹² He simply observed:

but this much is clear: that both the plaintiff and the second defendant have suffered from the first defendant, the husband, who has treated the plaintiff very badly and who appears to have treated his wife extremely badly for many years. He is a ne’er-do-well and a waster, but this is the matrimonial home and the wife who is in equity owner of half the house is living there … I can see no ground on which it would be right or proper for the court to order a sale of the property in order that the judgment creditor may be satisfied.¹³

Albery’s supplementary argument was deployed in case he was wrong about the receiver not being an interested person. Although everyone agreed that Mrs Hutchinson was a worthy party in the case and the husband was not, what Upjohn appears to be saying is, irrespective of the evidence, if the receiver had been able to obtain an order for sale, the court would still not have ordered one.

Upjohn’s refusal to grant the order for sale meant Mrs Hutchinson was able to stay in the matrimonial home at 29 Carr Lane, York.

A feminist judgment?

What makes Stevens v. Hutchinson look feminist is, first and most obviously, that the outcome favoured Mrs Hutchinson. The creditor’s claim for sale of the property failed, and she was allowed to remain in her home. This is in marked contrast to the position of wives in her position under the current legislation, in which the creditor would almost probably, thanks to the wording of section 335A IA 1986 (discussed later), have been granted the sale. From the perspective of today’s law, therefore, it would seem that in Stevens v. Hutchinson the judge balanced the interests of the wife and the creditor and gave prominence to the wife out of sympathy for her position.

A second apparently feminist feature was the judge’s remark that, had the creditor been able to call for a sale, he would still not have granted it. Everyone in this case agreed that Mrs Hutchinson was a worthy party and the husband was not, so the judge’s comment looked like a recognition of her superior claim to justice.

Unfortunately, neither of these features of this case make it a feminist one. On the first point, Upjohn J decided it on the purely technical ground that the creditor was not an ‘interested party’ who could call for a sale under section 30 LPA1925. Only the parties to the trust – Mr and Mrs Hutchinson – were interested parties. So the creditor failed to get his sale, and Mrs Hutchinson’s success had nothing to do with any judicial discretion exercised in her favour.

On the second point, Upjohn J as a lower court judge was obliged to follow existing precedent that a deserting husband could not evict his wife from the family home. This had been established in Bendall v. McWhirter following considerable judicial creativity on the part of Lord Justice Denning (as he then was) to develop what he called the ‘deserted wife’s equity’.¹⁴ So, Upjohn reasoned, if the husband could not evict her, then the creditor ought not to be in a better position than the husband. Once again, Upjohn was merely applying the law – one which, as it later emerged, he did not really agree with, but was bound to follow.

In their pioneering project Feminist Judgments: From Theory to Practice, Rosemary Hunter, Clare McGlynn and Erika Rackley set out the features of a feminist judgment:

(1) asking the woman questions, (2) including women, (3) challenging gender bias in legal doctrine and judicial reasoning, (4) contextualisation and particularity with the reality of women’s lived experience, (5) seeking to remedy injustices and to improve conditions of women’s lives, (6) promoting substantive equality, (7) drawing on feminist legal scholarship to inform decisions.¹⁵

The question for this chapter is whether, in essence, Upjohn demonstrated a ‘feminist consciousness or philosophy’ in his judgment;¹⁶ whether, instead of engaging in a ‘masculine hierarchy of rights’¹⁷ approach with creditors, the husband, and the wife participating in the insolvent estate, he was adopting ‘a form of moral reasoning based on an understanding of individuals as embedded within webs of relationships rather than as disconnected free-floating entities.’¹⁸

There is no evidence of any of this. In contrast to Denning, who certainly did foreground the ‘right’ of the deserted wife to remain in her home in spite of the competing property rights of husband or creditor, Upjohn decided this case on the basis that the creditor had no right, so no remedy. End of question. He did not ask whether the existing law had a disproportionate effect on the woman in the case, he made no generalisations about women at all: Mrs Hutchinson was only discussed as a party to the proceedings. He certainly did not challenge gender bias and had no concern to improve the conditions of women’s lives in general. He made no reference to any feminist literature which, though hardly present in legal scholarship at this time, would certainly have been prominent in feminist campaigning literature and the media.¹⁹ Nor would we have expected him to do any of this: not only was he a conventional Chancery judge, but he was a judge at first instance who was not free (unlike Denning in the Court of Appeal) to stray beyond the law he had to follow and apply.

But one can say that by referring to Mr Hutchinson’s character and behaviour, and to Mrs Hutchinson’s financial situation, Upjohn was able to recognise the place of the wife in the dynamics of the case and give context to Mrs Hutchinson’s position, reflecting a post-war social concern (though he did not mention it) that increasing numbers of marriages were breaking down and exemplary wives were being left by unworthy husbands without adequate financial support.²⁰

As it happened, Henry Hutchinson had had previous contact with the law. In 1922, when aged twenty-eight he was involved in the theft of some postal orders from his father’s post office. The Blyth News reported that he had been committed for trial by York magistrates on a charge of having stolen a dozen money orders and with having forged and uttered three of the orders for the payment of £40, £38 10s 6d, and £40, quite substantial sums at the time. Henry Hutchinson is reported as saying:

I am sorry for what I have done. I intended to repay the money I received for the orders at Manchester the same day after backing a horse at Chester, but unfortunately the horse did not run, and I had no other alternative but to make further investments the following days in an attempt to make good but without success.

I am quite aware of the seriousness of what I have done, but I appeal that a lenient view will be taken, not for my own sake, but on account of my father, who is a prominent citizen of York, my wife and three children for the disgrace attached to public proceedings will, I am sure, affect them to a great extent, despite the fact that they are entirely innocent.²¹

It is interesting (and ironic) to note the prominence Henry Hutchinson (doubtless on the advice of his counsel) gave to the ramifications of his actions on his wife and children, a concern that seems to be absent by the time he gets to the formally bankrupt stage of his life in the 1950s. In 1922 he was imprisoned for twenty-one months at the assizes for the North and East Riding of Yorkshire.²² It is not clear from the reported decision in Stevens v. Hutchinson whether Upjohn was aware of this episode, but it may have contributed to the judge’s use of the language of ‘waster’, ‘ne-er do well’ and ‘spendthrift’.

Mrs Hutchinson, by contrast, comes out well in this judgment, which shows that in the early 1950s courts were aware of the difficulties for deserted wives who faced losing their homes through no fault of their own. They recognised that, under the preferred form of family organisation at the time, husbands were breadwinners and wives homemakers, often deriving their entire income and rights from their relationship to the husband. In land law, however, homes were financial assets that should ideally be available for mortgage, sale and transfer to creditors. The decision in Stevens v. Hutchinson meant that the asset value in the home could not be realised and the house could be conceptualised as a home and left at the disposal of the wife and family.²³ This worked well for women as long as the doctrine survived, but its days were numbered, and Upjohn, once he reached the House of Lords, was one of the judges who brought it to an end.

A feminist judge?

There were many reported cases in the 1950s in which the wife succeeded under the deserted wife’s equity device.²⁴ However, the approach was much disliked by formalist judges and lawyers because it was not an interest that could be entered on any Register, so a third party could not have notice of it and would not be bound by it.²⁵ Consequently, although the deserted wife’s equity started out being good against third parties as well as husbands, it was soon narrowed down by the courts to being simply a personal right against the husband.

In the same year as Stevens v. Hutchinson, Upjohn sat at first instance in October and November in another bankruptcy and matrimonial home case, Lloyds Bank Ltd v. Trustee of the Property of O – A Bankrupt.²⁶ As he would later state in the House of Lords, the case is authority for the proposition that a ‘wife on entering a matrimonial home, which is the property of her husband, has no rights, even inchoate, in that home which the law will recognise or protect’.²⁷ Here he was simply stating the law, but not expressing any view as to whether this was a good thing or not. The case related to a flat in Bournemouth. The husband and wife married in 1940 and resided in the flat until the husband deserted the wife in 1952. She then obtained an order under section 17 Married Women’s Property Act 1882 to allow her to continue to reside in the matrimonial home. While she was in a nursing home, the husband removed all the furniture and her clothes from the matrimonial home. On her return he took her and the children to a house belonging to the wife’s sister. The mortgagee claimed possession of the flat pursuant to two legal charges which had been granted in October 1945. The wife, meanwhile, sought to stay in the matrimonial home with her three children. So the question before the court was whether her interest or that of the mortgagee prevailed. By this time the husband had been made bankrupt on his own petition after failing to repay the amount owing on the mortgages.

The mortgagee’s right to possession prevailed. While the wife’s right of occupation was good against her husband, Upjohn held that for the right to be effective against a mortgagee it had to arise by an act or event in law before the date of the mortgage. Priority is a key concept in land law, with rights created earlier having priority over those created later. Since the desertion of the wife occurred in 1952, that is, after the date of the mortgages of 1945, the mortgagee’s right had priority. Upjohn distinguished Bendall v. McWhirter²⁸ by focusing on the fact that ‘Denning, LJ, who stated the law more favourably to the wife than the majority of the court, did not consider that any right to possession arose in the wife before she was deserted’.²⁹

Critics had already pointed out that the deserted wife’s equity could equally have arisen at the date of the marriage rather than the date of the desertion.³⁰ Counsel for the wife also put forward a broader argument that the wife, upon entering the matrimonial home, had a right to continue in occupation of the matrimonial home, which even bound prior mortgagees. Upjohn declined to accept ‘so fantastic a proposition’.³¹ This is hardly a dispassionate comment.

In 1956 Upjohn revisited the deserted wife question again in Westminster Bank Ltd v. Lee.³² A charge had been granted in 1939 by a husband over a freehold house, Timberscombe, which was a matrimonial home. This charge was paid off but in November 1948 a second charge created an equitable mortgage over the property to secure the husband’s overdraft. Shortly before this date in September 1948 the husband deserted his wife. The bank was not aware of this at the time of the mortgage. In 1951 the wife obtained a court order restraining the husband from ejecting her from the matrimonial home until he had provided other suitable accommodation. The bank sought possession of the house.

Again, the bank was successful. Upjohn made some pertinent comments regarding the wife’s equitable interest. He stated, ‘My own view [is that] a deserted wife has no more than a status of irrevocability by the husband; but … that a wife has an equity which is enforceable against purchasers taking with notice’.³³ The problem was that the deserted wife’s equity was not capable of registration and so could not provide the required notice. For Upjohn, then, while the deserted wife’s equity could prevent a husband from evicting his wife from her home, she had no such right against a third party such as a mortgagee. The formal rules of land law prevailed.

Neither of these cases offers any evidence that Upjohn was a feminist. Both were decided in terms of the narrowest interpretation of the law, both explicitly rejecting any wider view.

The case that finally destroyed the deserted wife’s equity was National Provincial Bank v. Ainsworth.³⁴ By the time it came before the House of Lords in 1965, Upjohn was a Lord of Appeal in Ordinary and sat as one of the five judges in this case. It differed from Stevens v. Hutchinson in that in Ainsworth the dispute was not between a deserted wife and a creditor but between a deserted wife and a mortgage lender seeking to take possession of the home and sell it. In Ainsworth, moreover, the husband was sole owner whereas in Stevens v. Hutchinson the wife had a half-interest in the property.

The facts were relatively straightforward. The matrimonial home was the freehold property at 124 Milward Road, Hastings, Sussex, purchased by the car-dealer husband, Gordon Ainsworth, in 1956. On 17 August 1957 the husband deserted that home and his four children and wife, Marjorie Patty Ainsworth, who were in occupation of it. He went to live with his mother in one of the other two homes he owned. In 1961 the wife obtained a judicial separation giving her custody of the children and maintenance for them, as well as rent-free accommodation in the house. In 1959 the husband transferred the matrimonial home to his company (Hastings Car Mart Ltd, located at 7 Bank Buildings, Hastings) through which he ran his business. The house was then used as collateral to form part of a mortgage transaction with the National Provincial Bank Ltd. The company defaulted and in November 1961 and April 1962 the bank sought possession of the matrimonial home to repay a debt of £2,308. It claimed not to have been aware of the husband’s desertion or the wife’s occupation of the property.

In possession proceedings the question before the court was whether a deserted wife’s right in the matrimonial home, which was registered land, was an ‘overriding interest’ under section 70(1)(g) of the Land Registration Act 1925 (LRA1925) (now repealed and replaced by Schedule 3 of the Land Registration Act 2002). At first instance, Cross J held that the wife’s interest was not an interest in land but a mere personal right against her husband, so could not be overriding under the section 70 test. In consequence, the judge made an order for possession. The wife appealed to the Court of Appeal which, with Lord Denning as one of the three judges, allowed her appeal and held that she had a right to remain in the house.

The bank appealed to the House of Lords who held that the right in the case was not one which fell under section 70 LRA1925.³⁵ That section dealt with rights in reference to land which had the quality of being capable of enduring through different ownerships of the land according to normal conceptions of title to real property. Mrs Ainsworth was in actual occupation but her right to remain in the property was a mere personal right against her husband arising from her status as a wife.³⁶ Any equitable right based on the idea of the deserted wife’s equity of Bendall v. McWhirter fame was held not to exist by the House of Lords.³⁷ The wife then had no interest that could bind the bank, so the bank was entitled to possession and she lost her home.

As the author of Upjohn’s entry in the Oxford Dictionary of Biography noted, ‘Upjohn’s learned opinion in National Provincial Bank v. Ainsworth (1965) demonstrated conclusively that the notion that a wife could assert a so-called equity entitling her to stay in the husband’s property against the wishes of a purchaser or mortgagee was inconsistent with fundamental principles of property law.’³⁸ We can only conclude that Upjohn was in truth a formalist judge throughout his career who, however sympathetic he may have been to Mrs Hutchinson’s position in 1953, was not prepared to extend the same sympathy to Mrs Ainsworth twelve years later.

There are, indeed, several comments from the other judges which suggest that they had greater concern for the position of deserted wives. Lord Hodson noted that ‘the common law lends her [the wife] but slender assistance’.³⁹ Lord Cohen said, ‘I arrive at this conclusion with some reluctance for I recognise that the respondent is an admittedly wronged and deserted wife … the existing law I think is in an unsatisfactory state, particularly as regards the position of the deserted wife and of the third parties.’⁴⁰

These opinions indicate that the Lords believed that Parliamentary action was required to remedy the problems. The result was the Matrimonial Homes Act 1967 (MHA1967) which gave spouses with no beneficial interest the right to occupy the home if their interest was entered on the register of title.⁴¹ This allowed third parties to see before they purchased an interest that there was a prior right that would bind them. As a form of protection, it was not nearly so effective as the deserted wife’s equity had been, since the great majority of wives would have had no idea, and would probably have dismissed it if they had, that they needed to protect their right of occupation in case they were deserted. And this MHA 1967 did not apply to wives who, like Mrs Hutchinson, did have an interest in the property as a tenant in common.

Afterlife – even less feminist

We can now move to our second lens of critique for Stevens v. Hutchinson. The afterlives methodology is drawn from Terrence Cave’s ‘Afterlives’ perspective.⁴² In his seminal study on Goethe’s Mignon Cave examined Mignon’s afterlives in various forms of artistic output including books, plays, pictures and poems. Cave was able to use these afterlives to highlight the ‘value of “Mignon” as an imaginative (cognitive) resource … She becomes a figure to think with, both for the authors who imagined and reimagined her and for their readers.’⁴³ For Cave the notion of afterlives fits well with ‘genealogical metaphors … the family resemblances, the speaking memories, the return of the dead with their enigmatic messages and their unassuageable craving for attention.’⁴⁴

‘Afterlives’ provides a framework through which an examination of law reform can take place. This chapter uses Cave’s ‘Afterlives’ perspective to assess Stevens v. Hutchinson and its progression through posterity. In addition to Cave’s exhibition analogy, that is an exhibition of the subject as if they were being curated in a museum, the approach occasionally employs a ghost metaphor. ‘Marks’ in posterity are an important aspect of the afterlives lens. These marks are signifiers, gateposts, visible signs or things that someone has left in the present which reminds posterity of their time and impact. These ‘marks’ can include words and images of other incidents which help towards ‘notions of posthumous fame’.⁴⁵

If we couple ‘Afterlives’ and the ‘marks’ which are necessary for posterity we can start to examine and explore how, if at all, Stevens v. Hutchinson echoes from 1953 to the present day.

It is a truism that a couple’s home usually makes up the most valuable asset in the bankruptcy estate. Today, orders for sale, prior to a bankruptcy order, are regulated by section 14 TOLATA1996⁴⁶ and the criteria are set out in section 15 TOLATA1996.⁴⁷ However, when a bankruptcy order is made the section 15 provisions are replaced by those in section 335A IA1986. These provisions stipulate that, unless there are exceptional circumstances, the creditors’ interests will outweigh all others, and the property will be sold. These two statutes are major marks in the history of co-ownership disputes and the division of asset value.

What might constitute ‘exceptional circumstances’ has been considered in the case law both in relation to the old section 30 LPA1925 cases on orders for sale, now been replaced by sections 14 and 15 of TOLATA1996, and under section 335A IA1986. It is worth pausing for a moment to consider these older authorities. As Neuberger J (as he then was) observed in The Mortgage Corporation v. Shaire in relation to these older section 30 authorities,⁴⁸

to throw over all the wealth of learning and thought given by so many eminent judges to the problem which is raised on an application for sale of a house where competing interests exist seems somewhat arrogant and possibly rash … I think it would be wrong to throw over all the earlier cases without paying them any regard.⁴⁹

Section 30 cases, like Stevens v. Hutchinson, are therefore marks in the afterlives sense of the treatment of the wife in property disputes.

Re Holliday involved a married couple who bought a home in 1970 for £7,850.⁵⁰ Of that amount, £6,500 was raised on a mortgage. The couple had three children, but the husband left and moved in with another woman. The court ordered that he should pay maintenance to his wife. He was declared bankrupt as part of a strategy (his bankruptcy was said to be tactical) to avoid paying the maintenance. Creditors in the bankruptcy then tried to force a sale using section 30 LPA1925. This would have meant that the wife and children would have had to leave the home. The court permitted the sale, but it was delayed until the eldest child reached sixteen years of age.

Re Citro (A Bankrupt) involved two brothers (Carmine and Domenico) who were adjudicated bankrupt.⁵¹ There were also dependants in the case, both brothers having been married and fathered several children. The brothers’ only assets were their half shares of beneficial interests in their respective matrimonial homes. The creditors applied for an order for sale using section 30 LPA1925. The effect of a successful order would have been to remove the wives and children from their respective homes. At first instance Hoffmann J (as he then was) took account of their situation. He noted that the half shares to which the wives would be entitled would be insufficient for them to acquire other accommodation in the area and the educational problems caused by moving the children. The judge imposed a provision for postponement until the youngest child in each case attained the age of sixteen. The Court of Appeal reduced the postponement period to six months.⁵²

In Re Citro Nourse LJ made it clear that simple inconvenience for a wife and family and not having a home to go to were not exceptional circumstances.⁵³ After reviewing the authorities, he observed:

Where a spouse who has a beneficial interest in the matrimonial home has become bankrupt under debts which cannot be paid without the realisation of that interest, the voice of the creditors will usually prevail over the voice of the other spouse and a sale of the property ordered within a short period. The voice of the other spouse will only prevail in exceptional circumstances. No distinction is to be made between a case where the property is still being enjoyed as the matrimonial home and one where it is not.⁵⁴

Nourse LJ then went on to examine what might constitute exceptional circumstances.

it is not uncommon for a wife with young children to be faced with eviction in circumstances where the realisation of her beneficial interest will not produce enough to buy a comparable home in the same neighbourhood, or indeed elsewhere. And, if she has to move elsewhere, there may be problems over schooling and so forth. Such circumstances, while engendering a natural sympathy in all who hear of them, cannot be described as exceptional. They are the melancholy consequences of debt and improvidence with which every civilised society has been familiar.⁵⁵

He concluded that ‘the personal circumstances of the two wives and their children, although distressing, are not by themselves exceptional’.⁵⁶ What Nourse is saying, in other words, is that for a woman and her family to be left homeless thanks to her husband’s bankruptcy (note: not her ‘debt and improvidence’) is not exceptional because it is common, indeed normal.

The family home does not make up one of the types of assets that are kept out of the bankruptcy estate. In England and Wales the bankrupt’s estate is defined by section 283 IA1986. This includes the family home or at least the bankrupt’s interest in the matrimonial home.⁵⁷ Indeed, as Milman has pointed out, ‘the realisation of this “jewel in the crown” of the bankrupt’s estate is a top priority for any trustee in bankruptcy’.⁵⁸ Unfortunately, this has the ‘unavoidable corollary … that the bankrupt is rendered homeless, and that this fate is also experienced by any spouse or partner, as well as children and other dependants who may share the family home’.⁵⁹ The IA1986 provisions on the family home are dancing on a pin head in the overall battle for value between mortgagees and occupiers. This is because the home is still available for creditors, at the expense of spouses and dependants. Creditors are still able to realise value from the family home despite various stakeholder entitlements. English and Welsh land law is ill-equipped to understand the nature of the family home. Ultimately, it is viewed as a realisable asset. Sales are postponed, not outlawed entirely as is the case in other jurisdictions.⁶⁰ These provisions and the case law suggest that creditor dominance is all pervasive.

The IA1986 and TOLATA1996 provisions are certainly Cave ‘Afterlives’ marks in the historical development of how wives are treated when a husband is made bankrupt. In the final analysis the legislation does not help the wives of bankrupt men. Section 14 of TOLATA1996 gives receivers that very right to call for a sale of the home which the plaintiff in Stevens v. Hutchinson was seeking. Section 335A IA1986 states that, while the interests of others will be considered, unless the circumstances are exceptional the interests of the creditors will prevail, and the property will be sold. Mrs Hutchinson’s circumstances, being so common then as they are now, would not count as exceptional under the Re Citro formula. Thus, Mrs Hutchinson would almost certainly have lost had the IA1986 and TOLATA1996 been in force when she was hoping to stay in the family home.

Conclusion

Upjohn handed down his Stevens v. Hutchinson judgment in 1952. All co-owners today have a right of occupation of their property but if one of the occupants has no interest under an express trust, she or he must first establish an interest under the tricky remedy of the implied trust. This difficulty could be easily remedied if conveyancing solicitors ensured that couples held their property in definable shares, equal or otherwise, as part of the original conveyancing process. Fortunately this situation is much rarer today than it was in the 1950s, as most couples’ homes are conveyed to them jointly, whether they are married or not, as was in the case of Mr and Mrs Hutchinson.

Outside of a divorce or dissolution of a civil partnership, co-owners in this position will take their chosen shares if they decide to sell the property. If a couple divorces or dissolves a civil partnership, however, the family courts have complete discretion to re-allocate the marital property according to family law principles.⁶¹ This discretion, which tends to benefit wives who have made a greater contribution to the welfare of the family than to the property itself in financial terms, did not exist in the 1950s. It does not apply to cohabiting couples who must still establish their shares on property law principles.

Problems arise when a co-owner’s right of occupation comes into conflict with the right of a third party – a judgment creditor, as in Stevens v. Hutchinson or a mortgagee, as in National Provincial Bank v. Ainsworth. This chapter’s concern is not how Mrs Hutchinson could establish an interest in the land – she already had one under a statutory trust – nor whether she had any remedy against her deserting husband. Rather, it is about whether she could continue in occupation when faced with a third party seeking to take possession of and sell the property. The operation of the deserted wife’s equity in conjunction with the restricted definition of an interested party under section 30 LPA1925 allowed her to do so. Both have now disappeared. First the deserted wife’s equity, giving deserted wives right of occupation priority against their husbands, was ended by the House of Lords in Ainsworth. Then her position vis-à-vis creditors was clarified in statute in ways that clearly favoured creditors.

So one of the lessons we learn from this story is that feminist outcomes can be reversed and when new legislation is passed, it should not be assumed that it will necessarily improve things.⁶² The continued dominance of secured creditors in mortgage and insolvency law has been noted time and time again.⁶³ Lenders threaten to stop offering loans for businesses or mortgages to help people buy their home.⁶⁴ When Goode asked if the law was too favourable to secured creditors in the early 1980s he could have equally been discussing personal insolvency and the position of the wife.⁶⁵ Stevens v. Hutchinson represented a brief moment of concern for women in the early 1950s that was quickly replaced by a return to the status quo favouring commercial and property interests.

Notes

1. * I would like to thank Professor Rosemary Auchmuty and Professor Fiona Cownie and the audience members at the IALS conference ‘The Neglected Decade: Law in the 1950s’ (23 November 2022) for their helpful and constructive comments. I would particularly like to thank Dr Mari Takayangi of the Parliamentary Archives for her assistance and discussions on the genealogy aspects of this chapter and Mr John Briggs, Dr Mark Crosby and Dr Shirley Tung for their helpful and constructive feedback on earlier drafts. Any errors or omissions are the author’s sole responsibility.

2. 1. 1921 Census of England & Wales.

3. 2. [1953] Ch 299.

4. 3. On feminist judgments see further: Rosemary Hunter, Clare McGlynn and Erika Rackley (eds). Feminist Judgments: From Theory to Practice (Oxford: Hart, 2010). (Hereafter Feminist Judgments.) For a discussion of feminist legal history see Rosemary Auchmuty and Erika Rackley, ‘The Case for Feminist Legal History’, OJLS 40, no. 4 (2020): 878–904.

5. 4. The instrument, dated 4 September 1946, noted: ‘an estate in fee simple upon trust to sell the same with power to postpone the sale thereof and to hold the net proceeds of sale and the net income till sale in trust for ourselves as tenants in common in equal shares’.

6. 5. s30 LPA1925.

7. 6. See, for example, Ideal Bedding Co. Ld. v. Holland [1907] 2 Ch. 157, Flegg v. Prentis [1892] 2 Ch. 428,

8. 7. [1953] Ch. 299 at 305.

9. 8. The Land Charges Act 1925 is mentioned in the judgment.

10. 9. In Re Potts [1893] 1 QB 648.

11. 10. Bendall v. McWhirter [1952] 2 QB 466.

12. 11. See Rosemary Auchmuty, ‘Divorce Law Reform and Feminism in the 1950s’, in this book.

13. 12. In addition to Bendall v. McWhirter, Upjohn also had Re Buchanan-Wollaston’s Conveyance [1939] Ch. 738 and Re Power [1947] Ch. 572 for guidance.

14. 13. [1953] Ch. 299, 307, my emphasis.

15. 14. See Lord Denning, The Due Process of Law (Butterworths, London, 1980) 210–14. See also Pete Walton, The ‘Deserted Wife’s Equity’ – Forged in the Black Country; Bendall v. McWhirter [1952] 2 Q.B. 466 – An Historical Note (2019) WLJ, vol. 3, where the author argues that the case is an important point in the development of women’s rights.

16. 15. Hunter, McGlynn and Rackley, Feminist Judgments, n32, 35.

17. 16. Hunter, McGlynn and Rackley, Feminist Judgments, 5.

18. 17. Hunter, McGlynn and Rackley, Feminist Judgments, 21.

19. 18. Hunter, McGlynn and Rackley, Feminist Judgments, 21.

20. 19. See Sharon Thompson, Quiet Revolutionaries: The Married Women’s Association and Family Law (Oxford: Hart Publishing, 2022).

21. 20. See Auchmuty chapter in this book.

22. 21. ‘Theft of Postal Orders – York Man’s Story of Betting Transactions’ The Blyth News, Monday 29 May 1922. See also: ‘Alleged Postal Thefts: York Man Appears Before the Local Magistrates’, Yorkshire Evening Post, Thursday 18 May 1922.

23. 22. ‘Post Office Robbery’. Sheffield Daily Telegraph, Friday 7 July 1922.

24. 23. On this tension between asset and home see M.P. Thompson, ‘Monied Might or Social Justice? Mortgage Repossessions and the Protection of Occupiers’, in Frank Meisel and Peter Cook, Property and Protection: Legal Rights and Restrictions – Essays in Honour of Brian W Harvey (Oxford: Hart Publishing, 2000), 157; Lorna Fox O’Mahony, ‘ “Re-possessing Home”: A Re-analysis of Gender, Home Ownership and Debtor Default for Feminist Legal Theory’, William & Mary Journal of Women and the Law 14, no. 3 (2008); Lorna Fox O’Mahony, ‘The Idea of Home in Law’, Home Cultures 2, no. 1 (2005): 25–49; Lorna Fox O’Mahony, ‘Reforming Family Property: Comparisons, Compromises and Common Dimensions’, Child and Family Law Quarterly 15, no. 1 (2003): 1–20; Lorna Fox O’Mahony. ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge’, Journal of Law and Society 29, no. 4 (2002): 580–610; Lorna Fox O’Mahony, Conceptualising Home: Theories, Laws and Policies (Oxford: Hart Publishing, 2007).

25. 24. For example, Bendall v. McWhirter [1952] 2 Q.B. 466; Thompson v. Earthy [1951] 2 K.B. 596; Errington v. Errington and Woods [1952] 1 K.B. 290; Ferris v. Weaven [1952] 2 All E.R. 233; Street v. Denham [1954] 1 W.L.R. 624; Westminster Bank Ltd v. Lee [1956] Ch. 7 (a judgment of Upjohn); Jess B. Woodcock & Sons v. Hobbs [1955] 1 W.L.R. 152; Churcher v. Street [1959] Ch. 251.

26. 25. See S.J. Bailey, ‘Husband and Wife: Deserted Wife’s “Equity” to Remain in Matrimonial Home. Effect on Husband’s Successors in Title. Mere Equity. “Licence Coupled with an Equity”’, Cambridge Law Journal 23, no. 2 (1965): 216–19.

27. 26. [1953] 1 WLR 1460.

28. 27. National Provincial Bank v. Ainsworth [1965] AC 1175, p.1230C, per Upjohn. On which see further: Alison Dunn, National Provincial Bank Ltd v. Ainsworth (1965) in Landmark Cases in Equity, ed. Charles Mitchell and Paul Mitchell (Oxford: Hart Publishing, 2014).

29. 28. [1952] 2 QB 466.

30. 29. [1953] 1 WLR 1460, 1466.

31. 30. R.E. Megarry, ‘The Deserted Wife’s Right to Occupy the Matrimonial Home’, Law Quarterly Review 68 (1952): 382.

32. 31. [1953] 1 WLR 1460, 1466.

33. 32. [1956] 1 Ch.7.

34. 33. [1956] 1 Ch.7, 18, per Upjohn.

35. 34. National Provincial Bank v. Ainsworth [1965] AC 1175. Hereafter Ainsworth. On which see further: Dunn, National Provincial Bank Ltd v. Ainsworth (1965). See Thompson ‘Monied Might or Social Justice?’, 158–60.

36. 35. The panel was made up of Lords Hodson, Cohen, Guest, Upjohn and Wilberforce.

37. 36. Ainsworth, 1228 (C).

38. 37. Bendall v. McWhirter [1952] 2 QB 466. See also: Street v. Denham [1954] 1 WLR 624 and Jess B. Woodcock & Sons Ltd [1955] 1 WLR 152.

39. 38. ‘Upjohn’, ODNB.

40. 39. Ainsworth, per Lord Hodson 1219D.

41. 40. Ainsworth, per Lord Cohen, p.1228 (F).

42. 41. For further discussion of the effect of this Act and its successors, see Alison Clarke, Principles of Property Law (Cambridge: Cambridge University Press, 2020), 258. For discussion of wives, guarantees, and the family home see: Belinda Fehlberg, Sexually Transmitted Debt: Surety Experience and English Law (Oxford: Oxford University Press, 1997).

43. 42. Terence Cave, Mignon’s Afterlives: Crossing Cultures from Goethe to the Twenty-First Century (Oxford: Oxford University Press, 2011), generally and 36–29 on ‘Afterlives’. Hereafter Cave Afterlives. See further: Anna Holland (ed), Pre-Histories and Afterlives: Studies in Critical Method (London: Routledge, 2009), 5–8, 135–46.

44. 43. Cave Afterlives, 261.

45. 44. Cave Afterlives, 36.

46. 45. Jessica Goodman. ‘Introduction: What, Where, Who is Posterity?’ Early Modern French Studies 40, no. 1 (2018): 2–10, 2.

47. 46. Replacing s.30 LPA1925. On TOLATA1996 see: Nicholas Hopkins. The Trusts of Land and Appointment of Trustees Act 1996 [1996] Conv 411.

48. 47. On the operation of this section see First National Bank plc v. Achampong [2003] EWCA 487, [2004] 1 FCR 18 where Blackburne, J noted at para.62: ‘The effect of refusing a sale is to condemn the bank to wait - possibly for many years - until Mrs Achampong should choose to sell before the bank can recover anything.’

49. 48. The Mortgage Corporation v. Shaire [2001] Ch. 743.

50. 49. The Mortgage Corporation v. Shaire [2001] Ch. 761A–B.

51. 50. [1981] Ch 405 (CA). See also: Woodley v. Woodley (No 2) [1994] 1 WLR 1167 and F v. F [1994] 1 FLR 359 and, McGladdery v. McGladdery [1999] 2 FLR 1102.

52. 51. [1991] Ch 142 (CA).

53. 52. Discussed later.

54. 53. Re Citro (Domenico) (A Bankrupt) [1991] Ch. 142 (CA).

55. 54. Re Citro (Domenico) (A Bankrupt), p.157.

56. 55. Re Citro (Domenico) (A Bankrupt). On the facts in Re Citro Nourse LJ stated, ‘the personal circumstances of the two wives and their children, although distressing, are not by themselves exceptional’ (159).

57. 56. Re Citro (Domenico) (A Bankrupt), 159.

58. 57. See further: David Milman, Personal Insolvency Law, Regulation and Policy (Aldershot: Ashgate, 2005), 52.

59. 58. Milman, Personal Insolvency Law, 52. See also 103–9.

60. 59. Ian Fletcher, The Law of Insolvency, 5th ed. (London: Sweet & Maxwell, 2017), para.8–021.

61. 60. For example, America, where the home falls outside the bankruptcy estate.

62. 61. Matrimonial Causes Act 1973 section 25.

63. 62. Erika Rackley and Rosemary Auchmuty (eds), Women’s Legal Landmarks (Oxford: Hart Publishing, 2019).

64. 63. On which see John Tribe, ‘ “Policy Subversion” in Corporate Insolvency: Political Science, Marxism and the Role of Power Interests during the Passage of Insolvency Legislation’, Insolvency Intelligence 32, no. 2 (2019): 59. See also: John Tribe, ‘When Companies Go Bust, the Law Does Little to Help Suppliers Get Repaid – Here’s a Possible Solution’, The Conversation, 19 February 2021.

65. 64. Ambreena Manji, Land Law, in Great Debates in Gender and Law, ed. Rosemary Auchmuty (London: Palgrave, 2018), 49.

66. 65. Roy Goode, ‘Is the Law Too Favourable to Secured Creditors?’ Canadian Business Law Journal 8, no. 1 (July 1983): 53.