B appealed, contending that as there had been no agreement by the parties to change their beneficial interests, it was not open to the court to impute a common intention of unequal shares. The Court of Appeal cited para  of Jones v Kernott
 UKSC 53,  1 FLR 45:
'…where it is clear that the beneficial interests are to be shared, but it is impossible to divine a common intention as to the proportions in which they are to be shared ... the court is driven to impute an intention to the parties which they may never have had.'
Was there a common intention to vary shares in the property?
The Court of Appeal found that '[t]his stage of the reasoning [was] totally absent from [the] judgment' of the lower court (para ). However, 'it is at the very least strongly arguable that the Judge must be taken to have concluded that there was such a common intention [to vary]'.
In support of this, the Court of Appeal quoted from para  of Jones v Kernott: '
In this area, as in many others, the scope for inference is wide'.
The court concluded that 'the weight of the evidence' supported 'an inference that the parties intended to alter their shares in the property' (para ).
The approach of the Court of Appeal: a critique
In my opinion, this insertion by the Court of Appeal of the absent stage of reasoning of the lower court is suceptible to criticism.
Looking at the context of the sentence quoted from para  of Jones v Kernott
, the question was one of 'imput[ing] an intention to the parties as to the proportions
in which the property would be shared' (para , emphasis added), as opposed to being one of whether there was an intention to vary at all.
Despite this, the Court of Appeal concluded that the scope for inferring that there was an intention to vary (let alone in what proportions) is wide. Did the Court of Appeal take one step too far?
Why, asked B, should B’s share be limited to 25% at the time of the separation when he contributed 64% of the mortgage repayments over the next 34 months? The Court of Appeal held that the receipt by B of almost 25% of the equity in the property for his own use (the remortgage) 'entirely warranted' the judge’s conclusion (para ).
Furthermore, the subsequent 'taking account of payments made (or not made)'
for the children, the expenditure on repairs, and the non-payment by B of the mortgage for six years after 2008, meant that it was 'clearly necessary to vary the intention to be imputed to the parties' as to their shares, and that the 10% further adjustment was 'entirely justified' (para ).
It is clear that:
- the Court of Appeal will entertain arguments about child maintenance in a TOLATA claim (in the 'domestic consumer context' of course, the term used by Baroness Hale in Stack v Dowden  UKHL 17,  1 FLR 1858, at para );
'in principle, it should be open to a court to take account of financial contributions to the maintenance of children (or lack of them) as part of the financial history of the parties save in circumstances where it is clear that to do so would result in double liability.' (para )
- An intention to vary may be found even though both parties agree that there was no specific agreement to vary;
- An exercise analogous to the taking of an equitable account can be performed in certain circumstances (non-disclosure being one of them) – even where an equitable account has not been sought – through an adjustment of beneficial interests in a property. This does not sit easily with the judgment of the court in Wilcox v Tait  2 FLR 871:
'What can at least be said is that an exercise of equitable accounting is not to be confused with an enquiry as to the extent of the parties’ respective beneficial interests in the property in question. Questions of equitable accounting only arise once the extent of the parties’ beneficial interests has been determined, since the requirement to account (where it exists) is a reflection of and derives from those beneficial interests' (§ 64 at 885)
Comparison with approach in 'sole names' cases
This decision does not sit easily with the 'sole names' decision in Capehorn v Harris
 EWCA Civ 955 (http://bit.ly/1KNs8R8
“In my judgment, the judge erred in this paragraph of the judgment. She imputed an intention to the parties for the first stage of the two stage analysis rather than identifying an actual agreement made by them that Mr Harris should have any beneficial interest in Sunnyside Farm.” (para )
Clearly, in that case the intention which it was impermissible to impute was one of the establishment of a beneficial interest
, as distinct from a variation in quantification of an existing beneficial interest.
However, the Court of Appeal held in Capehorn
(para ) that:
'it is impossible in the circumstances of this case to infer that nonetheless (unbeknown to themselves) the parties did in fact make an agreement by their conduct.'
The distinction, however, is a fine one: the court was content to find an agreement (by conduct) to vary
in Barnes v Phillips
but not an agreement (by conduct) to share
in Capehorn v Harris
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