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(Court of Appeal; Thorpe, Rix and Etherton LJJ; 19 May 2010)
Both husband and wife sought transfer of the matrimonial home into respective sole names. There was a substantial charge on the property in favour of the bank which had guaranteed the husband's business borrowings. The trial judge refused to transfer the property into the wife's name because it was impracticable without wife having means to pay the mortgage. The judge also refused to transfer the property to the husband, as this would deprive the wife of a fair outcome. Instead he ordered a sale. The appeal judge upheld the decision.
The Court of Appeal allowed the appeal. If the wife was in occupation of the final matrimonial home and, having primary regard to interests of the children, sought transfer of the property in preference to proceeds of the sale, she should ordinarily succeed, providing of course that could secure release of co-owner from mortgage.
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