Family Law

At lunchtime on 13 July 2017 Harrison popped into the building society 'to see what kind of mortgage [they] could get'. Bingo! He surprised Fallon when he said 'it looks like we should be able to afford a house around £250k. It’s brilliant, eh?'

Fallon wasn’t impressed: she wanted to contribute too, but was unable to – that’s why, she said, she couldn’t marry Harrison. That and the fact that her parents had made a mess of their marriage. Fallon and Harrison both agreed that Fallon’s gloominess about relationships - “they don’t last”, she said stoically - made them both sad.

But Harrison, despite Fallon’s cold feet on the marriage front, boldly declared in the pub that night:

'Married or not the house that we buy together will be our house – yours and mine.'

Just for good measure, he added:

'You can be pessimistic all you like but I believe in us for now and for ever. I don’t know how much clearer I can say it.'

Fallon’s feelings of guilt

The conversation continued, but Fallon was still uneasy – she felt that she would be taking advantage of Harrison if they went down this road: 'I don’t deserve equity if you pay the lion’s share of the mortgage, Harrison!' she exclaimed. She then managed to offend Harrison by saying that she would feel like his ‘tenant’. But Fallon proposed that if the couple were to break up maybe there could be a 70:30 split in Harrison’s favour? Harrison was having none of it: 'Is this you trying to make it better? Because it’s not working!' he retorted. 'Listen to us.' said Harrison, 'Why the hell are we imagining how we divide a house we haven’t even bought yet?.. this is mad!'. Fallon sighed – yes, she too agreed it was mad to be having this discussion.

Harrison’s overtures continued: he loved Fallon’s independence, her pride, even her pig-headedness - Fallon’s heart began to melt - 'But not if it means we don’t do this' added Harrison. His concluding plea was simply 'I can afford it, so please let me. If that’s what you want. Is it?'

Impressed by Harrison’s persistence, Fallon replied with delight 'Mm, Yeah! It is. Of course it is.'

What could possibly go wrong?

Let’s wind the clock forward 6 or 7 years. Maybe longer.

Everyone who listened to The Archers on 13 July (or The Archers Omnibus on 16 July) witnessed Fallon and Harrison express their common intention as to the likely purchase. And ‘common intention’ is a term of art for property and family lawyers.

What if they get married?

Suppose Fallon and Harrison get married? Their common intention as to the ownership of the property would hardly be relevant. Whatever property they purchase would be subject, upon their divorce, to the jurisdiction of the Family Court as prescribed by the Matrimonial Causes Act 1973 and the settled body of case-law which has emerged in the years since, especially White v White [2001] 1 AC 596, [2000] 2 FLR 981, Miller / McFarlane [2006] UKHL 24, [2006] 1 FLR 1186 and Charman No. 4 [2007] EWCA Civ 503, [2007] 1 FLR 1246.

If the property was their matrimonial home, it wouldn’t matter particularly in whose name it was held – the Family Division can appear to drive a coach and horses through the Chancery Division when it comes to property ownership. The court would simply strive to achieve a fair outcome.

Perhaps Harrison might attempt to exclude his contribution to the matrimonial home from the overall pot of matrimonial assets – he might argue that it would be his 'pre-acquired wealth' which funded it, after all? This would not be his best point - Fallon would undoubtedly clobber him with the words of Lord Nicholls at § 22 of Miller / McFarlane:

'The parties' matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be treated as matrimonial property.'

But it wouldn’t be quite that simple: a fair apportionment of the assets would require the court to consider the discretionary matters in s 25 of the Matrimonial Causes Act 1973, and the application of the principles of ‘needs’ and ‘sharing’ adumbrated in Miller / McFarlane by Lady Hale and the majority, and by Lord Nicholls.

What if they were to stay unmarried?

If Fallon and Harrison don't get married, how and when is their common intention relevant? By way of background Lord Neuberger (President of the Supreme Court) recently considered the ‘Plight of the Unmarried’ at the Class Legal At a Glance Conference in London in June 2017. His excellent speech can be found here.

The unmarried: "fairness" flies out of the window

Any dispute between Harrison and Fallon as to the beneficial interests (that is to say their 'shares') in the property they purchase would fall to be determined by the application of property law – the law of trusts of land in particular – as opposed to family law. However there would be little to be excited about - it seems likely (although not certain) that the couple would do the sensible thing and declare a trust of land at the time of purchase. It is hard not to – the land transfer form – the TR1 – invites you to do so in Box 10, either as joint tenants or as tenants in common, and if the latter, it invites you to state in what proportions.

What is the difference between a tenancy-in-common and a joint tenancy?

A tenancy-in-common enables each of the co-owners to point to a specific share in the property (eg 50:50, although as Fallon intimated the shares need not be equal), and upon death, the share in the property becomes part of the estate of the deceased.

By contrast, with a joint tenancy each could point to the whole of the property and say that they own all of it. But should one of them die, then the property does not become part of the estate of the deceased, but becomes the property of the survivor (the 'right of survivorship') without further action.

There may be various inheritance tax planning reasons that determine which of a joint tenancy or a tenancy-in-common is most suitable (bearing in mind the inheritance tax-free allowance upon death, which is currently £325,000).

What about the ‘common intention’?

If Fallon and Harrison buy a property in joint names – as they intend to – and declare a trust (by completing Box 10 of the TR1), their common intention is not relevant. This is because if there is a declaration of trust as to the beneficial interest, it is conclusive, as Slade LJ observed in Goodman v Gallant [1986] 1 FLR 513 at 517:

'If… the relevant conveyance contains an express declaration of trust which comprehensively declares the beneficial interests in the property or its proceeds of sale, there is no room for the application of the doctrine of resulting implied or constructive trusts unless and until the conveyance is set aside or rectified; until that event the declaration contained in the document speaks for itself.' [emphasis added]

This was affirmed by Lady Hale at § 49 of Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858.

So why all the fuss in the two high profile ‘joint names’ cases which reached the highest court in the land in recent years: Stack v Dowden and Jones v Kernott [2011] UKSC 53, [2012] 1 FLR 45? The distinguishing features in Stack and in Jones were (leaving the ambulatory trust arguments in Jones to one side for one moment) that although the legal titles to the respective properties were in joint names, there had been no declaration of trust. The parties’ common intention in each of these cases was therefore highly relevant (see § 51 of Jones for the correct approach).

The difficulty for Fallon will be if Harrison discovers that his bank will not lend 'them' the money, but will only lend to him. The bank may insist upon the purchase being in Harrison’s sole name, and that will therefore potentially require Fallon to demonstrate that there was a common intention regarding the purchase and that she relied on it to her detriment (the requirement of detrimental reliance was recently emphasised in Capehorn v Harris [2015] EWCA Civ 955, [2016] 2 FLR 1026).

A possible estoppel?

Fallon may attempt to run a proprietary estoppel argument at the time of any future disagreement as to her property rights. However,

• she would need a specific representation or assurance to have been made to her by Harrison about a specific property (see Thorner v Major [2009] UKHL 18, [2009] 2 FLR 405 at § 2);
• she would need to have relied upon that representation or assurance;
• she would need to have acted to her detriment in (reasonable) reliance on that promise; and (possibly)
• a future court would have to find it unconscionable for Harrison to assert his strict legal rights.

At least as the plot stood on 13 July 2017, it is difficult to see what the promise is. Of course, it may be that Harrison reiterates a promise as to a specific property in a future episode.

One wonders whether independent legal advice will be sought by either party? Not quite Anna Tregorran’s (Jill Archer’s god-daughter’s) field, but Miranda Elliot pipped Justin at the post to instructing the top matrimonial barrister in London, and, you never know, he might be prepared to advise on a Direct Public Access basis....

In any event, Fallon is on to a good thing so long as she persuades Harrison to join with her in ticking Box 10 of the TR1 and executing it as a deed.

Family and property lawyers alike will continue to watch for any developments in Ambridge.