Oxley v Hiscock [2005] Fam 211

Key point
  • Under a common intention constructive trust, in the absence of an express or implied agreement, the beneficial shares of the cohabiting parties will be determined by their whole course of dealing in respect to the property, including financial and non-financial contributions to its upkeep
  • The property under cohabitation by a couple had been conveyed into the sole name of the man (D) and was sold after the parties separated
  • The woman (C) claimed under s14 TLATA that the proceeds were held on equal shares
  • D claimed that since there had been no discussion between the parties as to the extent of their respective beneficial shares at the time of purchase, the presumption of a resulting trust was not displaced and the property was held on trust for both parties in beneficial shares proportionate to their contributions
Held (Court of Appeal)
  • Beneficial interest is to be divided 60% to D and 40% to C
Chadwick LJ

Dealing with sole name cases

  1. The first question when dealing for a single name property used by a couple is to ask whether there was evidence of a common intention that each should have a beneficial share
  2. The second question is what the share should be

Ascertaining common intention

  • Evidence could either be express agreement or conduct especially financial contribution in detrimental reliance upon the common intention

Assessment of share

  • In many cases it will be proven by evidence of what was said and done at time of acquisition
  • Where there was no evidence of any discussion between the parties as to the amount of the share each was to have, ‘the answer was that each was entitled to that share which the court considered fair having regard to the whole course of dealing between them in relation to the property’
  • ‘And, in that context, “the whole course of dealing between them in relation to the property” includes the arrangements which they make from time to time in order to meet the outgoings (for example, mortgage contributions, council tax and utilities, repairs, insurance and housekeeping) which have to be met if they are to live in the property as their home’: [69
  • Accordingly the judge is not required to find that the property was held in resulting trust in proportion to contribution

Current case

  • C’s interest readily be inferred from financial contribution
  • Having regard to the whole course of conduct division should not be equal
Scroll to top