Martin v Martin

[1959] HCA 62

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Fullagar and Windeyer JJ.

MARTIN v. MARTIN

(1959) 110 CLR 297

30 November 1959

Husband and Wife

Husband and Wife—Property bought by husband from own moneys but in wife's name—Presumption that wife intended to take benefically—Rebuttal of presumption—Evidence of husband's intention—Claim that property taken in wife's name for unlawful purpose—Nature and effect of claim—Summons to establish beneficial ownership of property as between husband and wife—Powers of Court thereon—Jurisdiction of Court unaffected by subsequent dissolution of marriage—Law of Property Act, 1936-1956 (S.A.), s. 105.

Decision

November 30.
THE COURT delivered the following written judgment:-
This appeal concerns a dispute about the beneficial ownership of a parcel of land between parties who at the time the proceedings commenced were husband and wife. On 26th April 1957, however, an order nisi for dissolution of marriage on the ground of cruelty was pronounced at the suit of the wife. The order was made absolute six months later. The proceedings to determine which of the two was beneficial owner of the piece of land consisted of a summons under s. 105 of the Law of Property Act, 1936-1956 (S.A.) issued at the suit of the husband on 11th March 1957. The application made by the summons covered three adjoining parcels of land the title to which stood in the name of the wife, but during the hearing before Abbott J., from whose order the appeal comes, the husband in the course of his oral evidence said that what he wanted was one of the three parcels which he identified as the "top half" of the land, a parcel contained in certificate of title vol. 1989, fol. 39. Finding him content with this the learned judge confined his order to that piece of land. He ordered that the wife should transfer to the husband her estate and interest in the whole of the land comprised in that certificate of title and that she should pay the costs of the proceedings. From that order she now appeals to this Court. (at p298)

2. The land was purchased in her name by the husband and the question is whether the presumption of advancement has been rebutted and a resulting trust made out. Her appeal is on the ground that a resulting trust has not been made out by any satisfactory evidence and that in any event on the case made for the husband the purpose would be unlawful; the unlawfulness she finds in the case made for the husband is a purpose inter alia to defeat federal land tax, which had not then been discontinued. (at p299)

3. The relevant facts, so far as they appear in evidence, are relatively few. The parties were married on 14th June 1947. She was a spinster named Hellenore Mary Jones aged thirty-nine and he was a divorced man named George Henry Haliday Martin aged forty-five. They had lived together for some years before marriage and their adultery was the ground upon which Martin's former…