Family Law Hub

Beneficial Interest

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  • The parties married in 2004, separated in 2015 and the decree absolute of divorce was granted in 2019. The three children lived with the mother and had only indirect contact with the father. DJ Graham Keating found that their housing needs were being met, albeit imperfectly, by living in the former matrimonial home (FMH). He considered whether the income disparities and needs justified spousal maintenance. Although the mother had not been transparent about her resources, and the parties' litigation history strongly suggested that a clean break and the avoidance of subsequent litigation was very desirable, the mother would be responsible for the care of the children, for housing, feeding, schooling and clothing them. The district judge decided to grant the mother a 48.9% share of the father's 1995 pension, made no order for spousal maintenance, and left the beneficial interest of two properties with the mother and one with the father. He ordered the sale of the FMH, but this would not take effect provided that the mother secured the father's release from the mortgage, and paid him all costs awards from these proceedings, plus interest. If that were done within two years, the FMH need not be sold and the father would transfer his legal and beneficial interest in it to her. The father sought his costs of the FDR, and relied on a schedule of costs totalling £8,468. The district judge ordered that the mother should pay £7,388. The father also claimed for costs for the remainder of the proceedings. The district judge, quoting Mostyn J in OG v AG [2020] EWFC 52 ("if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs") found that each of the factors in FPR 28.3(7)(a), (b), (d) and (e) justified an award of costs in favour of the father, the mother's evidence having been "elusive and evasive" as to her income. The mother was ordered to pay £9,000 towards the father's costs since the FDR. Judgment, 04/07/2021, free
  • Two barristers had separated in January 2019. The husband wished an immediate order for sale of the family home to be made, to enable him to enforce his entitlement to £250,000 plus statutory interest. The wife hoped for a finding that the entire order approving a previous agreement should be set aside, with the effect of putting the case back to square one with all arguments re-opened. HHJ Edward Hess reached a clear view that the facts of this case did not pass the "setting aside" test from Walkden v Walkden [2010] 1 FLR 174: "given the importance attached to finality in settlements of this nature, the circumstances must be truly exceptional before a capital settlement can be re-opened". After considering the fairness of the parties' suggested scenarios, he decided in the end that making an order for sale, but delaying its implementation, would be the scenario most likely to give both parties some prospect of a reasonable financial future. Judgment, 18/03/2021, free
  • A judgment on the trial of a claim under CPR Part 8 for declaratory relief as to the beneficial interests in a large country house in Oxfordshire. The couple, in their 50s and unmarried at the time, had caused the Property to be conveyed into their joint names with no declaration of trust. The male partner (and claimant) had paid the whole of the purchase price. The couple had split up soon afterwards, but the female partner had continued to use the property from 2009 until 2018. Deputy Master Hansen concluded that some of the male partner's evidence was unreliable, certain discussions having been misremembered. Nothing he had done or said at the material time could or would have caused his partner to think that he intended anything other than that they would own the property jointly at law and in equity, intending that, on the death of one of them, the surviving joint tenant would become the sole owner by right of survivorship. The parties' post-acquisition conduct was not such as to warrant any inference or imputation varying the beneficial interests. However, Deputy Master Hansen considered it just for the female partner to pay an occupation rent of £59,958 to the claimant, due to the times at which she had excluded him and his new partner from the property for her exclusive use. The claimant was ordered to pay 90% of the defendant's costs of the action, to be subject to detailed assessment if not agreed. Judgment, 18/03/2021, free
  • The husband and wife had been engaged in highly acrimonious and litigious financial remedy proceedings since late 2019. This hearing concerned the husband's application for the wife to pay, on an indemnity basis, his costs of a preliminary issue regarding the beneficial ownership of five ships and whether the couple were indebted to the second to sixth respondents. The latter issue had been settled following a payment from those respondents to the wife. Lieven J stated that the wife's conduct had been "fairly extraordinary". She had alleged a conspiracy to defraud her of millions of pounds of matrimonial assets, and then decided not to pursue those allegations, having already put the husband to enormous expense and depriving him of the chance to clear his name. It was a basic principle, said Lieven J, that fraud should not be pleaded without sufficient evidence. Where a party pleaded fraud, and then withdrew that claim, the argument that they should pay the other party's costs was even stronger than in the withdrawal of other types of claim. The wife would pay the husband's costs of and occasioned by the preliminary issues on an indemnity basis. Judgment, 15/01/2021, free
  • Following the separation of the claimant and the first defendant, the claimant sought a declaration that she was beneficially entitled to 50% of a number of properties held by the defendants, either under a common intention constructive trust or a partnership, and for relief under ss 994 and 996 of the Companies Act 2006 on the grounds of unfair prejudice. Tom Leech QC (sitting as a judge of the Chancery Division), found the first defendant to be an unsatisfactory witness, his evidence being inconsistent with key documents. He had made a conscious decision to ignore the undertakings which he had given to the claimant. After a detailed consideration of the facts, the judge declared that the claimant had a 50% interest in some of the properties, with the first defendant ordered to account for various sums of money, and to pay her all sums due. Judgment, 22/12/2020, free

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  • For use in registering joint ownership of property at the time of acquisition Form (external), 15/01/2013, free


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