Page 1 Oxley v Hiscock Court of Appeal [2004] EWCA Civ 546, [2005] Fam 211, [2004] 2 FLR 669, [2004] Fam Law 569, [2004] Conv. 496 HEARING-DATES: 6 May 2004 6 May 2004 CATCHWORDS: Property -- Unmarried couple -- Property in name of one party -- Unequal contributions to purchase price by both -- Assessment of quantum of parties' respective beneficial interests -- Principles to be applied HEADNOTE: When the couple first began to cohabit, they lived in a house occupied by the woman as a secure tenant. After a short time the woman exercised her right to buy the house, using money provided by the man. The property was in the woman's sole name, but to safeguard the man's beneficial interest a legal charge in his name was registered against the house. The house was eventually sold and the proceeds used to purchase another property, this time in the man's sole name. Ignoring any liability for interest under the man's legal charge, the effective contributions by the couple were £36,300 by the woman and £60,700 by the man, a fur- ther £30,000 being borrowed from the building society. Despite receiving legal advice on the importance of clarifying the beneficial interests concerned, no declaration of the parties' respective beneficial interests was made and no charge was registered in the woman's name. For a number of years the couple lived together in the property, both working and contributing to household expenditure, and both working on improvements to and maintenance of the property. Following the breakdown of the relationship, the property was sold for £232,000, and the couple moved into two separate homes, one purchased in the woman's name, using £33,000 of the proceeds of sale, and one in the man's name. The man paid the woman a further £5,000 and some money for renovations of her new home, but retained the balance of the proceeds of sale. The woman applied under s 14 of the Trusts of Land and Appointment of Trustees Act 1996 for a declaration that the proceeds of sale of the property were held on trust in equal shares. The judge found that the couple had ex- pressly agreed in discussions that each would have a beneficial share in the property, registering it in the man's sole name primarily because of concerns about a potential claim by the woman's former husband in the event of the woman's death. However, the judge found no express agreement as to the extent of the par- ties' respective shares. The judge took the view that the woman was entitled to a half-share in the proceeds of sale, and awarded her a further £72,056. The man appealed, on the basis that, absent any specific evi- dence of a common intention as to the proportions in which the parties should be entitled, communicated at the time of the transaction, the presumption which applied was one of resulting trust in the proportions in which the purchase money had been provided. Held -- allowing the appeal in part -- (1) In cases in which an unmarried couple bought a property, intending to live together as husband and wife, each making a financial contribution to the purchase but purchasing the property in the sole name of one of them and making no express declaration of trust, the first question was whether there was evidence from which to infer a common intention, communicated by each to the other, that each should have a benefi- cial interest in the property. In many cases, including the instant case, discussion between the parties at the time of the purchase would answer that question. Where the evidence was that the matter had not been dis- cussed, a common intention might readily be inferred from the fact that each had made a financial contribu- tion (see para [68]). (2) If such a common intention had been inferred, the second question to be answered in such cases was 'what was the extent of the parties' respective beneficial interests in the property?'. In many cases the Page 2 [2004] EWCA Civ 546, [2005] Fam 211, [2004] 2 FLR 669, [2004] Fam Law 569, [2004] Conv. 496 answer would, again, be provided by discussions at the time of the purchase, but in the absence of specific evidence on the point, each would be entitled to that share which the court considered fair, having regard to the whole course of dealing between them in relation to the property, including the arrangements which they made from time to time in order to meet the outgoings which had to be met to enable them to live in the pro- perty as their home (see para [69]). (3) There was no difference in outcome, in cases of this nature, whether the analysis lay in constructive trust or in proprietary estoppel. If necessary, such cases could be analysed on the basis that if it were a cou- ple's common intention that each should have some beneficial interest in the property, then, in the absence of evidence that they had given any thought to the amount of their respective shares, the necessary infer- ence was that they must have intended that the question would be answered later on the basis of what was then seen to be fair. It was artificial, and an unnecessary fiction, to attribute to the parties a common intention that the extent of their respective beneficial interests in the property should be fixed as at the time of the ac- quisition, in circumstances in which all evidence pointed to the conclusion that at that time they had given no thought to the matter (see para [71]). (4) Given that in this case there was no evidence of any discussion between the parties as to the amount of the share that each was to have, the right question to be asked was what would be a fair share for each party having regard to the whole course of dealing between them in relation to the property. It did not follow from the fact that parties lived together in a house which they both regarded as their home that they shared the ownership of that house equally. A fair division of the sale of the property would be 60% to the man and 40% to the woman; an equal division would give insufficient weight to the disparity in the parties' financial contributions (see paras [72]-[74]). NOTES: Statutory provisions considered Law of Property Act 1925, s 53 Matrimonial Proceedings and Property Act 1970 Matrimonial Causes Act 1973 Housing Act 1985, Part V, s 155 Housing and Planning Act 1986, s 2(3) Trusts of Land and Appointment of Trustees Act 1996, s 14 CASES-REF-TO: Carlton v Goodman [2002] EWCA Civ 545, [2002] 2 FLR 259, CA Drake v Whipp [1996] 1 FLR 826, CA Evans v Hayward [1995] 2 FLR 511, CA Eves v Eves [1975] 1 WLR 1338, [1975] 3 All ER 768, CA Gissing v Gissing [1971] AC 886, [1970] 3 WLR 255, (1970) FLR Rep 269, [1970] 2 All ER 780, HL Grant v Edwards and Another [1986] Ch 638, [1986] 3 WLR 114, [1987] 1 FLR 87, [1986] 2 All ER 426, CA Huntingford v Hobbs [1993] 1 FLR 736, CA Lloyds Bank plc v Rosset and Another [1991] AC 107, [1990] 2 WLR 867, [1990] 2 FLR 155, [1990] 1 All ER 1111, HL Marsh v von Sternberg [1986] 1 FLR 526, FD McFarlane v McFarlane [1972] NILR 59, CA (NI) McHardy and Sons (A Firm) v Warren and Another [1994] 2 FLR 338, CA Midland Bank plc v Cooke and Another [1995] 2 FLR 915, [1995] 4 All ER 562, CA Pettitt v Pettitt [1970] AC 777, [1969] 2 WLR 966, (1969) FLR Rep 555, [1969] 2 All ER 385, HL Saville v Goodall [1993] 1 FLR 755, CA Springette v Defoe [1992] 2 FLR 388, CA Stokes v Anderson [1991] 1 FLR 391, CA Turton v Turton [1988] 1 Ch 542, [1987] 3 WLR 622, [1988] 1 FLR 23, [1987] 2 All ER 641, CA Page 3 [2004] EWCA Civ 546, [2005] Fam 211, [2004] 2 FLR 669, [2004] Fam Law 569, [2004] Conv. 496 Walker v Hall [1984] FLR 126, CA Yaxley v Gotts and Gotts [2000] Ch 162, [1999] 3 WLR 1217, [1999] 2 FLR 941, [2000] 1 All ER 711, CA COUNSEL: Nicholas Francis QC and Christopher Wagstaffe for the appellant; David Walden-Smith for the respon- dent. JUDGMENT-READ: Cur adv vult PANEL: Chadwick, Mance, Scott Baker LJJ JUDGMENTBY-1: CHADWICK LJ JUDGMENT-1: CHADWICK LJ: [1] This is an appeal from an order made on 20 May 2003 by Her Honour Judge Hallon, sitting in the Bromley County Court, in proceedings brought under s 14 of the Trusts of Land and Appoint- ment of Trustees Act 1996 in relation to the proceeds of sale of property known as 35 Dickens Close, Hart- ley, Kent. The appeal requires the court to revisit, once again, the familiar question how the proceeds of property in which an unmarried couple have been living as husband and wife should be shared between them when the relationship comes to an end. The underlying facts [2] The property at 35 Dickens Close was purchased in April 1991 in the name of the appellant, Mr Allan Hiscock. At that date Mr Hiscock and the respondent, Mrs Elayne Oxley, had known each other for some 5 or 6 years. For much of that time his employment had required Mr Hiscock to reside in Kuwait; but, when he was in England on leave, they had lived together at 39 Page Close, Bean, near Dartford.