Section 17 of the Married Women’s Property Act 1882 (“MWPA”) is one of the more obscure pieces of legislation which is still in force in the field of matrimonial and co-habiting finance. It is not well known and is infrequently used substantively in its own right. This is regrettable since, in very specific circumstances, it can be invaluable. This article aims to show when and how it might be used today.
Important Notice & Disclaimer
By its nature, this summary should only be regarded as a general guide to the principles which applied when it was last updated (in May 2020). Anyone wishing to rely on it should take independent legal advice on the facts of his or her case before so doing.
Between 1870 and 1964 Parliament passed eight Married Women’s Property Acts (or Amendment Acts) relating to England and Wales which form the foundation of modern laws of matrimonial finance. The first two Acts—from 1870 and 1882—are by far the most important historically. Prior to the passage of these Acts, a married women only had limited rights to possess property and contract with third parties in her own name, separate from her husband. As was explained by Blackstone in his Commentaries on the Laws of England, Book 1, Chapter 15, III:
By marriage, the husband and wife are one person in law that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything;
This is the doctrine of coverture and whilst it was subject to a great many exceptions, had the effect that, in the event of a breakdown of a relationship, whether or not accompanied by divorce, the wife was afforded very little financial protection to allow her to become independent.
The first attempt at correcting this problem was in the first Act of 1870 where certain categories of income and savings were “deemed and taken to be property held and settled to her separate use, independent of any husband to whom she may be married”.
Many campaigners—notably Millicent Fawcett—thought that this did not go far enough and succeeded in having Parliament pass the 1882 Act which by its (now repealed) s.1 abolished most of the doctrine of coverture.
One side effect of the abolition of coverture was the requirement to give a court jurisdiction to determine disputes between a married couple. This was due the conjoining of their legal personality: they could not sue each other in most civil courts since one could not have the same person as a plaintiff and defendant! The only courts which did regard them as individuals were the Ecclesiastical Courts. However, by the 1870s, had lost most of their jurisdiction. As a result, Parliament enacted s.9 in the 1870 Act which gave the jurisdiction to the Chancery and County Courts to summarily determine any such application (in private if necessary) and such order, inquiry and award costs “as he shall think fit”; a provision then replicated in s.17 of the 1884 Act.
As currently in force, the section provides as follows:
17. Questions between husband and wife as to property to be decided in a summary way.
In any question between husband and wife as to the title to or possession of property, either party, may apply by summons or otherwise in a summary way to the High Court or the family court and the court may, on such an application (which may be heard in private), make such order with respect to the property as it thinks fit.
In this section “prescribed” means prescribed by rules of court.
It will be immediately obvious that the section has been subject to numerous amendments since it was originally enacted which has left the redundant paragraph defining “prescribed”—a word not otherwise used.
Extensions to s.17
Section 17 is subject to an unfortunate array of extensions in other acts of Parliament. They do not amend the text of s.17 but rather make declarations as to its scope and effect. As a result, they are often missed (including by the courts).
Section 7, Matrimonial Causes (Property and Maintenance) Act 1958 (“MCPM”) extends s.17 MWPA in rather tortuous language to permit the court to make an order that any party who has dissipated property in which the other party has an interest should pay compensation to a value of the property which has been dissipated. The effect is analogous to an action for damages for breach of fiduciary duty or an equitable account. This would appear to avoid the difficulty that s.17 MWPA only permits the court to make orders “with respect to the property”. It also, by s.7(7) rehearses the power of the court to make an order for sale.
Section 39, Matrimonial Proceedings and Property Act 1970 (“MPPA”) gives the right to a couple whose marriage has been dissolved or annulled to use s.17 MWPA as long as they bring proceedings within three years of the date of the divorce or annulment:
An application may be made to the High Court or the family court under section 17 of the Married Women's Property Act 1882 (powers of the court in disputes between husband and wife about property) (including that section as extended by section 7 of the Matrimonial Causes (Property and Maintenance) Act 1958) by either of the parties to a marriage notwithstanding that their marriage has been dissolved or annulled so long as the application is made within the period of three years beginning with the date on which the marriage was dissolved or annulled; and references in the said section 17 and the said section 7 to a husband or a wife shall be construed accordingly.
Although this section does not refer to decrees of judicial separation, it appears that parties to a marriage which has received such a decree would still be able to use s.17 MWPA since they remain, formally, married.
Section 66, Civil Partnership Act 2004 (“CPA”) replicates s.17 MWPA in respect of civil partners with two differences: the power to make an order for sale of property is set out expressly; and there are no references to how the application should be made:
66 Disputes between civil partners about property
(1) In any question between the civil partners in a civil partnership as to title to or possession of property, either civil partner may apply to–
(a) the High Court, or
(b) the family court.
(2) On such an application, the court may make such order with respect to the property as it thinks fit (including an order for the sale of the property).
Similarly, s.67 and s.68 grant the court similar powers in respect of civil partnerships as it has to married couples under s.7 MCPMA and s.39 MPPA.
Finally, section 2(2), Law Reform (Miscellaneous Provisions) Act 1970 rather surprisingly further extends the powers of s.17 MWPA (as extended by the MCPMA) to couples who were engaged to marry but broke off their engagement:
Where an agreement to marry is terminated, section 17 of the Married Women’s Property Act 1882 and section 7 of the Matrimonial Causes (Property and Maintenance) Act 1958 (which sections confer power on a judge of the High Court or the family court to settle disputes between husband and wife about property) shall apply, as if the parties were married, to any dispute between, or claim by, one of them in relation to property in which either or both had a beneficial interest while the agreement was in force; but an application made by virtue of this section to the judge under the said section 17, as originally enacted or as extended by the said section 7, shall be made within three years of the termination of the agreement.
The limitations are notable, in that:
- The application must be brought within 3 years of the breakdown of the engagement.
- It appears to apply only to an agreement to marry and not an agreement to enter into a civil partnership.
- The court’s powers are limited to dealing property in which either or both had an interest during the period of their engagement.
Finally, whilst I cannot envisage how it might be used today, s.1(2)(b) Law Reform (Husband and Wife) Act 1962 provides that if one spouse sues another in tort, the court may either stay the proceedings to allow a s.17 MWPA action to proceed instead or exercise the powers under s.17 during the hearing of that claim.
Interpretation of s.17
The meaning of the section has been subject to a considerable amount of litigation; particularly in the 1960s when it was the principle mechanism by which matrimonial finance disputes were resolved. This culminated in consideration of the scope of the section by the House of Lords in Pettitt v Pettitt  A.C. 777. At that stage the High Court was issuing 900 applications in a year under s.17 with a further, unknown, number being heard in the County Court (see 806 at E).
The live issue in the 1960s was whether the words “as he sees fit” granted an unfettered power to the Judge to make any order which appeared fair. Denning MR had held, in Hine v. Hine  1 WLR 1124, that s.17 conveyed an unfettered discretion on the court which (at 1127) “transcends all rights, legal or equitable, and enables the court to make such order [...] as appears to be fair and just in all the circumstances of the case.” This approach was unanimously rejected by the House in Pettitt. The speech of Lord Diplock at 820 D is probably the clearest:
I agree with your Lordships that the section confers no such power upon the court. It is, in my view, a procedural section. It provides a summary and relatively informal forum which can sit in private for the resolution of disputes between husband and wife as to the title to or possession of any property—not limited to “family assets” as I have defined them. It is available while husband and wife are living together as well as when the marriage has broken up. The power conferred upon the judge “to make such order with respect to the property in dispute … as he shall think fit,” gives him a wide discretion as to the enforcement of the proprietary or possessory rights of one spouse in any property against the other, but confers upon him no jurisdiction to transfer any proprietary interest in property from one spouse to the other or to create new proprietary rights in either spouse.
Three years following the decision in Pettitt, the enacting of the Matrimonial Causes Act 1973 (“MCA”) gave the court a substantive jurisdiction to make the types of determinations which Lord Denning had envisaged. As a result the volume of applications has considerably reduced and now it is rare to see the act mentioned in more than one case a year. The only further substantive consideration occurred when it was rather optimistically argued without success in Mossop v. Mossop  Fam. 77 that the combination of this section and s.17 MWPA gave the court the power to make any of the orders open to it under MCA in respect of a couple who were engaged but not married. This was rejected on two grounds: s.2(2) is purely procedural and also the powers of the MCA are conditional on a grant of decree of divorce, nullity or judicial separation. Since these cannot be granted in the cases of a broken off engagement; there is no jurisdiction to make a substantive order.
When might s.17 MWPA be used today?
As a result of the above, s.17 MWPA (and s.66 CPA) can be seen as providing a procedural route for the determination of the proprietary rights of married, civilly partnered and formerly engaged couples, as an alternative to commencing more conventional proceedings.
I therefore suggest it might be used in the following situations.
In circumstances where it is necessary to determine a party’s interests in property without seeking divorce
The most obvious use of this section is to protect one party to a marriage against claims on jointly owned property. For example, if, under MWPA, it was determined that a house in the sole name of the husband was actually held on a constructive trust in equal shares; a creditor of the husband would only be able to enforce against half of its value. These considerations are particularly significant in the context of insolvency or criminal confiscation proceedings where all available assets might be claimed.
Of course, practitioners should be careful to guard against engaging in “sham” litigation where there is no dispute between the parties and the purpose of the action is simply to defeat a claim by a creditor: it is very unlikely that such an approach will succeed.
Less obviously, there may also be cases where parties wish to remain married (e.g. for religious reasons) and do not wish to obtain even a decree of judicial separation, yet have their respective interests in the matrimonial estate determined.
As an alternative to TOLATA for couples who cannot claim under the MCA
For couples who cannot use the MCA, this MWPA might provide a helpful alternative to brining TOLATA proceedings in the County of High Courts. This will clearly only be an option for eligible couples who, in practical terms, are mostly likely to be those who were engaged but did not marry. However, it is worth noting that formerly engaged couples might also include those who have had a non-legally recognised marriage ceremony: in a first instance decision, S v. J  EWHC 586 (Fam), Roberts J did not doubt the power to use s.17 MWPA in circumstances where the parties had been engaged; had ceremonial blessing; but did not have a dissoluble or nullifiable marriage because one party was already married and could not obtain a divorce.
Whilst Pettitt makes it clear that the MWPA gives the court no new powers, proceedings under s.17 MWPA might have the following advantages of bringing a claim under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”):
- An application under TOLATA is a civil application and so is subject to the normal CPR costs regime whereby the loser is obliged to pay the winner’s costs. Additionally, the sometimes draconian costs consequences of failing to beat offers made under Part 36 apply. On the other hand, an application under MWPA is not a “financial remedy proceeding” within the meaning of FamPR 28.3 and so there is no presumption as to costs and no scope for making Part 36 offers. Whether this is attractive or not depends on the relative confidence of the parties as to their cases.
- There can be no dispute about conjoining an application under MWPA with other financial proceedings in the Family Court, particularly applications under Schedule 1, Children Act 1989 for financial provision for children; whereas many judges are unwilling to join a TOLATA application within the County Court to a Schedule 1 case in the Family Court.
- An application under TOLATA requires full particulars of claim to be issued with, or shortly after, the claim form (depending on the procedure used). If the CPR Part 8 procedure is used, the claim form must also be accompanied by all evidence that the Claimant wishes to rely upon and further evidence is inadmissible without leave of the court. This involves a very large amount of work which must be carried out before the start of the claim. Although there is little case law about it and the FamPR is vague, it seems likely that a party commencing proceedings under s.17 MWPA would not be required to provide as much detail (particularly in light of the “summary” nature of MWPA) when issuing proceedings under this section via. a form D50A.
In order to provide remedies not available under the MCA 1973
Since the Matrimonial Causes Act 1973 does not confer on the Family Court unlimited powers, there may be circumstances where the court lacks jurisdiction to make an order. Here the wider powers of MWPA come to the fore. For example, in a footnote to paragraph  of SR v. HR, SC  EWHC 606 (Fam) Mostyn J discusses the judicial disagreement between him and Cobb J as to whether the MCA 1973 conveys the power to make an interim order for sale and suggests that if it does not, an application under s.17 MWPA can be used to effect the same.
Whilst the High Court is never likely to see 900 applications under MWPA in a year again, in the right circumstances it is an invaluable tool in the family lawyer’s toolbox and should be far more widely known and understood.