England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
(HIS HONOUR JUDGE MITCHELL)

		Royal Courts of Justice Strand London, WC2A 2LL
		30 April 2015

LORD JUSTICE SALES:

1. This is a renewed oral application for permission to appeal in relation to a judgment of His Honour Judge Mitchell in the Bromley County Court dated 2 October 2014 in which Judge Mitchell dismissed an appeal from a decision of District Judge Sterlini dated 22 October 2013. District Judge Sterlini had refused an application by the applicant former wife for (i) a transfer order to be made in respect of a tenancy enjoyed at that time by the former husband in respect of property at 62 Woodland Street in conjunction with (ii) a long term occupation order to be made in favour of the wife in respect of that property.
2. District Judge Sterlini was addressed in relation to a previous decision in the county court involving these parties by Judge Worthington, which was said to be definitive or alternatively persuasive material in favour of the wife's position that the property at 62 Woodland Street was enjoyed by the husband and wife together in the relevant period as the matrimonial home, so as to provide the court with jurisdiction under paragraph 4 of Schedule 7 to the Family Law Act 1986. Paragraph 4 provides:

"The court shall not make a Part II order unless the dwelling-house is or was:

(a) in the case of spouses a matrimonial home;

(aa) in the case of civil partners, a civil partnership home; or

(b) in the case of cohabitants, a home in which they cohabited."

3. District Judge Sterlini considered that the previous ruling did not create some form of estoppel or res judicata in favour of the wife. He went on to consider the evidence in the case. He found on the facts that although the husband and wife had married in 1999 and divorced only in about 2011, they had separated and did not live together as husband and wife in a period commencing before the acquisition of the tenancy of 62 Woodland Street in 2003. On the footing that they had in effect fully separated their affairs and lived separate lives, albeit that from time to time they happened to conduct their separate lives under the same roof at 62 Woodland Street, District Judge Sterlini held that the property could not be regarded as a matrimonial home for the purposes of paragraph 4 of Schedule 7.
4. The wife appealed. His Honour Judge Mitchell dismissed the appeal. He gave reasons why he considered that District Judge Sterlini was right not to treat himself as bound by any previous order in the dispute between the parties. He dismissed the appeal in relation to District Judge Sterlini's findings that the property in question did not constitute a matrimonial home. At paragraph 13 of his judgment His Honour Judge Mitchell said:

"... what a matrimonial home requires is that the couple should live there together as man and wife."

On the findings by District Judge Sterlini it was clear that the husband and wife in this case did not live at the property together as husband and wife.

5. Lewison LJ refused permission to appeal on the papers. This is, of course, a second appeal and the court will only grant permission if it considers that the appeal would raise an important point of principle or practice or there are is some other compelling reason for the Court of Appeal to hear it. In the relevant part of his ruling, Lewison LJ said this:

"2. The burden of proof point raised in the grounds of appeal appears to relate to [the 2003 and 2005] period. But in any event the DJ's decision on the facts did not depend on the burden of proof. Having heard the evidence (and he found neither party reliable) he was entitled to reach the factual conclusions that he did. The DJ was the fact finding tribunal and the CJ's reference to burden of proof do not alter the position.

3. The thrust of the decision of both the DJ and the CJ on the meaning of 'matrimonial home' is that the spouses must have some communal life together before a property can qualify. I do not consider that there is a real prospect of showing that their interpretation was wrong. With the exception of this point none of the grounds of appeal raise a point that would pass the test for a second appeal; and in relation to this point there is no real prospect of success."

6. I respectfully agree with Lewison LJ in relation to these observations. Despite having heard argument from Miss O'Malley today, I do not consider that she has shown that there is any error at all in Lewison LJ's reasoning.
7. She criticised the decision of His Honour Judge Mitchell in that he had not referred to an authority that she said was cited to him, Moore v Moore [2004] EWCA Civ 1243; [2004] 3 FCR 461 where at paragraph 19 Thorpe LJ said:

"So long as the basic conditions required by the statute are met - that the dwelling-house in question must be, or at some time have been the home of the person entitled and the marriage must subsist - then the applicant is entitled to protection."

8. Miss O'Malley sought to contend that reference to Thorpe LJ's judgment indicates that this is a case where there is a real prospect of success on appeal. I do not agree. The particular point in issue in Moore v Moore was of a different character and, moreover, Thorpe LJ was not seeking to pronouce upon the point at issue on the proposed appeal in this case. Further, even on Thorpe LJ's formulation I do not consider that there is a real prospect of success for the appellant in this case on the findings of fact made by District Judge Sterlini that the marriage did not subsist in any real form at any time in the period during which the husband was the tenant at 62 Woodland Street.
9. For these reasons I do not consider that this is a case in which permission to appeal should be granted for a second appeal and accordingly this application is refused.

Order: Application refused