Family Law Hub

Muema v Muema [2013] EWHC 3864 (Fam)

Application in which applicant sought an order under section 37(2)(b) of the Matrimonial Causes Act 1973 in order to set aside a notice to quit that was signed by his estranged wife. Application dismissed.

  • In brief: The parties had lived together with their two children at the property in question, which they leased from the local authority, until June 2009 when the wife ("W") had moved out. The husband ("H") had then been ordered to leave under an exclusion order in October 2009 (following which W moved back in). There followed, due to rent arrears, a number of possession orders followed by suspensions of these, in the Croydon County Court. In July 2011 W indicated a wish to leave the property and was offered homeless accommodation. Following W vacating the property, H moved back in. 

    In January 2012 W signed a notice to quit. There was a factual dispute between H, W and the local authority, as to whether this was an effective notice to quit. That issue was decided in favour of the local authority at a hearing in August 2012. In the meantime, in May 2012, there had been a shared residence order made in relation to the parties' children under which W cared for them for slightly more time than H

    H thereafter applied to the High Court for an order under s. 37(2)(b) Matrimonial Causes Act 1973 in order to set aside a notice to quit the former matrimonial home that had been signed by W.

    Peter Jackson J, hearing the application, noted that the case of Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478 establishes that a joint tenancy between a landlord and two tenants continues only for so long as all three will it. It was further established in the case of Newlon Housing v Alsulaimen [1999] 1 AC 313 that a notice to quit was not a disposition for the purpose of s. 37(2)(b) and therefore there was no power to set it aside under that section. H argued that that authority could not survive the coming into force of the Human Rights Act 1998, as it was, in his submission, in contravention of Article 8 of the ECHR. 

    Peter Jackson J considered that it would be surprising if H's argument were to succeed, given that the Human Rights Act has been in force since 2000 and there was no more recent authority on the point. However, he considered H's argument on its merits, and held that:-

    • the decision in Monk was not in conflict with either Article 8 or Article 1 First Protocol ECHR. This had recently been decided in the Court of Appeal in Sims v Dacorum Borough Council [2013] EWCA Civ 12; 
    • the decision in Alsulaimen therefore remained good law and the scope of s.37 should not be extended to encompass notices to quit. Moreover the overall framework of possession proceedings enabled tenants to have their Article 8 rights respected. 
    • even had the court had jurisdiction to set aside the notice to quit, it would not have been appropriate to do so in this case. There had only been one tenancy allocated to the family by the local authority, and the local authority was entitled to have taken this position (hard headed though it may seem). The set aside of the notice to quit would only have been to the disadvantage of W, who cared for the children for a slight majority of their time.

    Consequently, the application was dismissed.

Case note, published: 18/02/2014

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See also

  • Application in which applicant sought an order under section 37(2)(b) of the Matrimonial Causes Act 1973 in order to set aside a notice to quit that was signed by his estranged wife. Application dismissed. Judgment, 20/12/2013, free

Published: 18/02/2014

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