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(Court of Appeal; Sir Nicholas Wall P, Jacob, and Rimer LJJ; 26 May 2010)
The couple bought a joint property in 1985 with the wife providing the deposit from the proceeds of the sale of a caravan and the balance was funded by an interest only mortgage which they shared. They had two children. The father extended the property thereby increasing its value. He then moved out and bought another property in 1993 leaving the mother with the children. The mother alone funded the property and other outgoings for her and the children for 12 years. The father then severed the joint tenancy and sought his half share. The mother sought a declaration under TLATA 1996 that she owned the entire beneficial interest in the property. The judge made a declaration that the beneficial interest was split 90% to 10% in favour of the mother, that decision was upheld on appeal. The father appealed.
Appeal allowed. It was for the wife to displace the presumption of equality arising form the joint legal title, and the evidence from the judge's findings was insufficient to do so. The parties agreed that as at the point of separation their equitable interests would have been equal, so evidence was needed to demonstrate that the common intention had changed since separation.
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