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(Chancery Division; Michael Briggs QC sitting as a deputy judge of the High Court; 15 June 2005)  1 FLR 1245;  BPIR 1231
The husband was declared bankrupt in 2001 and his trustee in bankruptcy applied for an order for possession and sale of the matrimonial home. When the property was transferred to the husband and wife in 1984 there was no declaration as to beneficial ownership although they made written statements regarding percentage interests in connection with the husbands proposed IVA in 2001. The issue before the High Court was the size of beneficial interests of the parties as tenants in common. The relevant legal principles were extracted from Chadwick LJ's judgment in Oxley v Hiscock  3 WLR 715. The common intention that might be inferred from conduct at the time of purchase or subsequent to the purchase has to be a common intention entertained by the parties as at the time of purchase. If there was no discussion as to their shares at the time of purchase each is entitled to a share that the court considers fair. It would be unfair for the wife to obtain a determination from the court that her interest exceeded 50% in litigation between herself and a trustee of creditors when the husband and wife had made earlier statements to the same creditors that they were equal beneficial owners for the proposed IVA.
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