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(Chancery Division; HHJ Purle QC sitting as HC judge; 24 July 2009)
After the man divorced from his first wife, he remained in a property owned in joint names by himself and the first wife. A few years after the divorce, the man and the first wife signed a written agreement for the sale of the first wife's share in the property, in return for a payment of £10,000 and the husband's commitment to try to obtain the first wife's release from the mortgage. Although the equity in the property was then about £35,000, the first wife had been prepared to accept less than half the net value of the property on the understanding that the couple's eldest son would be left the house when the man died. The man paid the entire £10,000 to the first wife, but the property was never transferred into the man's sole name. About 5 years after the agreement had been signed, the man remarried. Thereafter he lived in the property with the second wife. Some 4 years later the man died intestate. The first wife claimed ownership of the entire property by virtue of survivorship. In response the second wife sought specific performance of the written agreement. Both the first and second wife also raised the issue of family provision.
The first wife could not rely upon non-completion of the agreement when the non-completion had been caused in part by her own refusal to proceed. However, when the agreement was reached both parties had been operating under the misapprehension that their son would be the beneficiary of the man's estate. As that was not in fact the case, it would not be right or fair for the agreement now to be specifically enforced. Delay was also an issue, as the man had not himself pushed for specific performance and had not sought to obtain the first wife's release from her mortgage covenants, as agreed. Although the agreement was not to be enforced, it had had the effect of severing the beneficial interests in the property, so that the man and the first wife held the property as tenants in common, rather than as joint tenants. The property was to be held for the first and second wives in equal shares. There was to be no order for sale. The second wife was to remain in the property, and to pay the mortgage and other outgoings. An order for sale might be sought if the second wife decided to move. The first wife was to be excluded from occupation for so long as the second wife wanted to live in the property. No occupation rent would be payable so long as the second wife paid the outgoings on the property, not least because the first wife had received £10,000 for nothing. Given the small size of the estate, no family provision would be awarded.
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