The MWPA 1882: An alternative to TOLATA and the MCA?

The Married Women’s Property Act 1882 was brought about in a time in which married women were unable to deal with property as a separate legal entity to their husbands. The MWPA, therefore, provided a means for them to apply to the court to settle questions as to property.

Section 17 is the relevant provision of the MWPA for these purposes. Being a 140 year-old piece of legislation, it does not read in particularly concise fashion. At its core, however, it provides for parties to apply to either the family court or High Court, by summons or in a summary fashion, to make any order as it sees fit with respect to title or possession of property.

Who might use it?

As the name might suggest, the MWPA was conceived with the intention that it would be used by married women. Indeed, it can be used by married couples to deal with issues relating to property even prior to divorce proceedings. Of course, the extent to which a happy marriage can continue following litigation between spouses is an entirely different matter.

In modern times, the scope of potential applicants is somewhat broader:

Couples in Civil Partnerships

Section 66 of the Civil Partnership Act 2004 contains an equivalent provision. It expressly identifies that the court can make an order for sale on such an application being made.

Couples post-Divorce/Annulment

Section 39 of the Matrimonial Proceedings and Property Act 1970 applies, so former spouses can make an application within 3 years of annulment or dissolution of a marriage.

Couples who have broken off an engagement

Section 2(2) of the Law Reform (Miscellaneous Provisions) Act 1970 extends the scope of section 17 so that parties who have terminated an agreement to marry can make such an application as if they were married.

This latter group is, perhaps, the type of claimant for whom an application under section 17 MWPA would be most beneficial. They are unlikely to be able to apply under the Matrimonial Causes Act, and may not want to risk the costs implications of an unsuccessful TOLATA claim.

Uses

As such, section 17 remains useful in the modern day in the following circumstances (of course, this is a non-exhaustive list):

• As an alternative to TOLATA (as mentioned above).
• For determining an issue as to ownership of property without the parties seeking a divorce.
• For couples who did not have a legally recognised marriage.
• For seeking an order the court may not otherwise be able to make, such as an Interim Order for Sale.

Concluding thoughts

The flexibility offered by the language of section 17 – in fettering the court the discretion to make “such order with respect to the property as it thinks fit” – provides scope for applications to be made beyond what might be sought under TOLATA or the MCA. Coupled with this is the fact that neither the normal civil rule that costs follow the event nor FPR 28.3 apply. As such, parties may consider an application under this provision worth making in circumstances where the chance of success may be lower than, for example, an application under TOLATA.