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Kara Swift
Kara Swift
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Date:27 APR 2009

(Family Division; Singer J; 27 April 2009)

In her ancillary relief claim the wife was asserting that the husband had a beneficial interest in a range of properties, including the matrimonial home, whose titles were registered in the names of members of the husband's family and in the name of a company in which a family member had an interest. The registered owners intervened in the case to argue that the husband had no beneficial interest in the properties. It was acknowledged that the husband had, through his own company, managed or played a leading part in the acquisition of all the properties, and in their subsequent refurbishment, maintenance and management.

The judge raised the possibility that the funds from which the properties had been purchased had been in the nature of a 'family pot'; the wife chose not to pursue this line of argument, and the interveners gave evidence as to the lack of any formal family trust.

The wife had no free-standing right to launch an application against the interveners claiming that the husband was the beneficial owner of disputed assets, and must therefore rely on what she claimed would be the evidence that the husband could have relied upon were he to have made the same claim. Evidence by the wife as to statements by the husband to wife concerning beneficial ownership carried no evidential weight unless, perhaps, the statement had been made in the presence of the relevant intervener.

The wife had failed to make out her case. There had been no express statement of trust and there was no evidence that the money used in the acquisition and development of the disputed assets was the husband's money.

The 'family pot' hypothesis, which would not have allowed a finding as to ownership, but might have been relevant to s 25 exercise, could encompass an informal arrangement or even a tacit understanding quite divorced from the law of trusts.