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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Morris v Morris [1994] EWCA Civ 22 (21 June 1994) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1994/22.html Cite as: [1994] EWCA Civ 22

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(APPLICATION FOR STAY)

		Royal Courts of Justice Strand, London, W.C.2
		21st June 1994

LORD JUSTICE STEYN: The judgment of the Court will be given by Lord Justice Waite.

LORD JUSTICE WAITE: The application before the Court this afternoon is for a stay of execution pending the hearing of a husband's appeal against an order made by Judge Goldstein in Oxford County Court on the 10th June 1994 under the Matrimonial Homes Act 1983. That order, as extended as a result of a stay that was granted by the court below, directs that he should vacate the matrimonial home by 6.00 p.m. today.

Very briefly stated, the circumstances are that the husband and wife are now aged, we are told, about 40 and 41. They were married in August 1986. There are two children who are to be regarded as children of the family. They are girls aged 16 and 8, nearly 9.

There has been a long history of rows between the parents. Those, as the Judge found, have involved serious threats of violence by the husband. Neither spouse has left the matrimonial home, 9 Walton Road, Harrow, which is a property in their joint names. They are striving to maintain, so far as they can, separate households under one roof. The wife filed a divorce petition in March 1993 on which a decree nisi was recently granted on the 14th April 1994.

The key findings of the Judge were that the wife is frightened of the husband. The Judge held that he has at times been violent to her and at other times has threatened her with violence. The husband was also found to have behaved generally without consideration either for the wife or for the two children of school age who live under the same roof.

As for the older child there was evidence that these differences have affected her performance and behaviour at school. She is 16 and is due to be taking exams this term. A serious episode occurred on the 14th June 1994, so the Judge found, when the husband terrified the wife by threatening her with sharp kitchen or carving knives. The Judge found that his conduct on that occasion went beyond what was acceptable or excusable.

The Judge found that the husband would be able to obtain alternative accommodation, and he reached that finding on the basis that the husband did concede, in cross-examination, that he did have a mother who lived in the Sudbury area. She had a spare room, but was not on particularly good terms with him. The room was available but was small.

There had been discussion and submissions before the Judge as to the possibility of this terrible state of affairs, with the couple living in acute disharmony under one roof, continuing, but with some of the worst tension removed. That would have involved some formula by which the husband would be debarred from using the one living room in the house. He occupies a bedroom. The wife occupies another. The two girls occupy the third bedroom.

It is clear as a matter of implication, though the Judge did not make any finding in those express terms, that the Judge regarded any such formula as a hopelessly unrealistic solution to the difficulties of this unfortunate family.

By his Notice of Appeal the husband, to put it very shortly, objects that the Judge took a misdirected view of the evidence and failed to take sufficient account of the length of time for which this couple has endured the stress of being under the same roof in the past.

It is said that the finding that the husband could obtain alternative accommodation was against the weight of the evidence.

A relevant feature of the case is that both parties are living on income support. They have but one asset between them, that is the matrimonial home in Harrow. In about two months time, on 12th August 1994, the District Judge will have to decide, in financial proceedings, what the future is to be of the beneficial ownership of that property. It is realistic to acknowledge that there must be a possibility, at least, that he will order the entire interest to be transferred to the wife, so that she can continue to provide a home for herself and the children after this couple have divorced and gone their separate ways.

Against that background, it seems to me that this court has to consider the matter of the proposed stay from two aspects. The first is: do the grounds of appeal have a reasonable prospect of success? Secondly, if the stay is refused will the situation be irreversible? As to the first aspect I am bound to say that, for my part, I would regard the prospect of a successful reversal of the Judge's findings and decision as very poor indeed. There was evidence to support his findings. His conclusion, clearly based on the express language of section 1(3) of the 1983 Act, was a matter entirely for his discretion and I can see no basis upon which it can be said that he had been misdirected or was plainly wrong in the result.

As to the second, it is true that if a stay is refused the husband will be homeless, but that is a fate which he may await in any event as a result of the hearing next August. In the meantime he will have certain statutory rights to be housed as a homeless person of which he must avail himself. The balance of convenience and justice seem to me to require that the application for a stay should be refused.

LORD JUSTICE STEYN: I agree.

(Application refused. Costs reserved to District Judge)

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