Morris v Morris

An application for a stay of execution pending appeal requires consideration of two matters: whether the appeal has a reasonable prospect of success and whether refusal of a stay would create an irreversible situation. An appellate court should respect a discretionary order under section 1(3) of the Matrimonial Homes Act 1983 where the findings are supported by evidence and no misdirection or plainly wrong conclusion is shown. Potential homelessness does not necessarily make refusal irreversible where statutory accommodation rights are available and the same consequence may follow from later proceedings. The balance of convenience and justice determines the application.

The husband sought a stay of execution pending his appeal against an order made by Judge Goldstein at Oxford County Court on 10 June 1994 under the Matrimonial Homes Act 1983. The order required him to leave the jointly owned matrimonial home by 6.00 p.m. on 21 June 1994.

The order followed findings of violence, threats and serious domestic disharmony. The husband argued that the judge had misdirected himself, failed to give sufficient weight to the parties’ history of living under one roof, and wrongly found that alternative accommodation was available. The central questions were whether the appeal had a reasonable prospect of success and whether refusal of a stay would make the position irreversible.

Application refused. Lord Justice Waite gave the judgment of the Court, and Lord Justice Steyn agreed. Costs were reserved to the District Judge.

1. The Court approached the proposed stay from two aspects. First, it considered whether the grounds of appeal had a reasonable prospect of success. Secondly, it considered whether refusal of the stay would produce an irreversible situation.
2. The prospects of successfully reversing the County Court judge’s findings and decision were very poor. There was evidence supporting the findings that the wife was frightened, that the husband had been violent or had threatened violence, and that a recent incident involving kitchen or carving knives went beyond acceptable conduct. The judge was also entitled to find that alternative accommodation could be obtained. A proposal that the parties should continue living under one roof with restricted use of the living room was, by implication, regarded as hopelessly unrealistic.
3. The order was based on the express language of section 1(3) of the Matrimonial Homes Act 1983. Its conclusion was a matter for the judge’s discretion. The Court found no basis for saying that the judge had been misdirected or was plainly wrong.
4. Refusal of a stay would make the husband homeless, but that consequence might arise in any event from the forthcoming financial proceedings, in which the matrimonial home might be transferred to the wife. The husband also had statutory rights to seek accommodation as a homeless person. The balance of convenience and justice therefore required refusal of the stay.

• Court of Appeal (Civil Division): In [1994] EWCA Civ 22, the application for a stay of execution pending appeal was refused. Costs were reserved to the District Judge.
• Oxford County Court: Judge Goldstein made an order on 10 June 1994 under the Matrimonial Homes Act 1983 requiring the husband to vacate the matrimonial home. The order had been extended by a stay granted below.