Moore v Moore

Under sections 30(7) and 30(8) of the Family Law Act 1996, matrimonial home rights do not automatically disappear merely because the nature of a spouse’s qualifying contract changes. Where the marriage subsists and the same dwelling-house remains or has been the matrimonial home, protection may arise again on renewal or acquisition of a fresh tenancy, including after separation. A purported rent-free licence lasting only four days was too insubstantial to found an application under section 33, and the letter did not amount to a contractual licence. The court declined to determine definitively the scope of section 37 of the Supreme Court Act 1981. The appeal was dismissed.

The parties were married and had lived in 46 Thurloe Square, which the husband occupied under a contractual tenancy. During divorce proceedings in France and England, the husband terminated that tenancy. The wife applied under Part 4 of the Family Law Act 1996 for occupation rights, seeking ultimately to access financial relief connected with occupation of the property.

Mr Justice Singer dismissed the wife’s applications but granted permission to appeal. Before the appeal, the tenancy had ended and the landlords had permitted the wife to remain rent-free for four days. The appeal concerned whether matrimonial home rights could arise or revive following a change in the qualifying contractual right, whether the temporary permission was a contractual licence sufficient to engage section 33, and whether the husband could be required to seek a new tenancy.

1. Disposition. The appeal was formally dismissed. The court nevertheless accepted the wife’s construction in part and awarded 50 per cent of the costs in favour of the respondent.
2. Construction of matrimonial home rights. Lord Justice Thorpe held that sections 30(7) and 30(8) of the Family Law Act 1996 did not impose the restriction identified by Singer J. The statutory protection is available where the marriage subsists and the dwelling-house is, or has at some time been, the home of the person entitled and the other spouse. A change in the nature of the qualifying contract does not by itself remove protection. Lord Justice Waller agreed, explaining that renewal of the tenancy after separation could restore matrimonial home rights where it concerned the same matrimonial home. Lady Justice Arden agreed with both judgments.
3. Section 33 gateway. The court accepted that a spouse who negotiated a fresh contract with the landlords might be entitled to apply under section 33(1)(a)(i) and section 33(1)(b)(i). Similarly, a fresh tenancy obtained by the spouse previously entitled to occupy could engage matrimonial home rights under section 33(1)(a)(ii), subject to the statutory conditions. Such an application could lead to occupation relief and, through section 40, related financial relief, but the ultimate exercise of relief would involve a broad discretion and a merits assessment.
4. Existing permission and section 37. The landlords’ letter did not, on the court’s assessment, create a contractual licence. Even if it did, a licence lasting only four days was too insubstantial to found an application under section 33. The suggested order requiring the husband to use his best endeavours to obtain a new lease was implausible on the facts. The court therefore considered it unnecessary to rule definitively on the scope of section 37 of the Supreme Court Act 1981.
5. The court did not determine the separate jurisdictional issues concerning possible relief under sections 22 or 27 of the Matrimonial Causes Act 1973, which might have required consideration of Wermuth v Wermuth [2003] 1 WLR 942. It encouraged the parties to use the Court of Appeal’s mediation scheme, although mediation could not be imposed.

• Court of Appeal (Civil Division): Appeal from the Family Division dismissed. The court accepted that matrimonial home rights could arise on a fresh or renewed tenancy concerning the same matrimonial home, but found no sufficient present contractual licence and made no definitive ruling on the scope of section 37 of the Supreme Court Act 1981.
• Family Division: Mr Justice Singer dismissed the wife’s applications under the Family Law Act 1996 and granted permission to appeal. The husband’s stay application was deferred.