Equal rights to joint home can be inferred

LAW REPORT 26 July 1995

Midland Bank v Cooke and another; Court of Appeal (Lord Justice Stuart-Smith, Lord Justice Waite and Lord Justice Schiemann) 7 July 1995

The fact that a married couple made no agreement as to the proportions in which their home should be beneficially owned did not prevent the court, applying general equitable principles, inferring an agreement that they should own it jointly in equal shares.

The Court of Appeal unanimously allowed an appeal by the second defendant, Jane Marie Cooke, against the decision of Judge Hamilton, sitting in Hitchin County Court on 5 February 1992, and ruled that she had a beneficial half- interest in the matrimonial home, overriding that of the bank under a mortgage taken out in the name of her husband, Graham Edward Cooke.

Andrew Gore (Pictons, Bedford) for Mrs Cooke; Terence Bergin (Philip Ross & Co) for the bank.

Lord Justice Waite said that when Mr and Mrs Cooke were first married in 1971 they moved into a home which had been purchased in Mr Cooke's sole name. Of the pounds 8,500 purchase price, pounds 6,540 was provided by mortgage, pounds 1,000 was a wedding present from Mr Cooke's parents and the rest came out of Mr Cooke's own savings. Both spouses worked and although Mr Cooke paid the mortgage Mrs Cooke discharged other household outgoings from her earnings.

Soon after the decision in Williams & Glyn's Bank Ltd v Boland [1981] AC 487, at the bank's request Mrs Cooke, believing she had no option, signed a form of consent to any present or future right or interest she might have in the property being postponed to the bank's security under the mortgage.

In May 1981 Mr and Mrs Cooke together executed a second mortgage on the property to secure their liability under a joint guarantee as security for a business loan. In about 1984 Mrs Cooke brought Married Women's Property Act proceedings as a result of which the property was conveyed into both spouses' joint names as tenants in common.

In July 1987 the bank brought these proceedings against Mr and Mrs Cooke claiming payment of pounds 52,491 due under the mortgage and possession in default of payment. Mrs Cooke's defence pleaded, inter alia, that her signature on the consent form had been obtained by undue influence and that she was entitled to a beneficial half-interest in the property overriding any interests of the bank under the mortgage.

It was common ground that at the time of purchase there had been no discussion between the spouses as to the name in which the property should be held or as to how it should be beneficially owned.

The judge ruled in Mrs Cooke's favour on the issue of undue influence but concluded that Mrs Cooke was only entitled to a beneficial interest of 6.47 per cent of the property, that being the proportion borne by her half of the wedding present from Mr Cooke's parents. It was implicit in that finding that the judge did not regard any other aspect of the course of dealing between the parties as capable of having any influence at all upon the quantification of their interests.

The bank submitted that if the parties themselves testified, as they had done in this case, that they made no agreement as to the proportions of their respective beneficial interests, there was no scope for equity to infer from their conduct an imputed agreement. That was a submission which, considered in the absence of authority, his Lordship would reject instinctively.

The bank relied on Springette v Defoe [1992] 2 FLR 388 at 395. However, that case involved a middle-aged couple already established in life whose house-purchasing arrangements clearly had the same formality as a joint venture or commercial partnership. It could not have been intended to lay down a general principle that absence of express agreement precluded inference of presumed agreement.

Positive evidence that the parties never discussed nor intended any agreement as to the proportions of their beneficial interest did not preclude the court, on general equitable principles, from inferring one.

The judge erred in treating the cash contribution to the purchase price as wholly determinative of that issue. One could hardly have a clearer example of a couple who agreed to share everything equally. Given that they had chosen to introduce the additional commitment which marriage still involved, the conclusion became inescapable that their presumed intention was to share the beneficial interest in their home in equal shares.

Paul Magrath, Barrister

Suggested Topics
Start your day with The Independent, sign up for daily news emails
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Guru Careers: Graduate Resourcer / Recruitment Account Executive

£18k + Bonus: Guru Careers: We are seeking a bright, enthusiastic and internet...

Reach Volunteering: Chair and trustees sought for YMCA Bolton

VOLUNTARY ONLY - EXPENSES REIMBURSED: Reach Volunteering: Bolton YMCA is now a...

Tradewind Recruitment: Geography Teacher

£150 - £180 per day: Tradewind Recruitment: Geography Teacher Geography teach...

Tradewind Recruitment: Geography Teacher

£150 - £180 per day: Tradewind Recruitment: Geography Teacher Geography teach...

Day In a Page

Sun, sex and an anthropological study: One British academic's summer of hell in Magaluf

Sun, sex and an anthropological study

One academic’s summer of hell in Magaluf
From Shakespeare to Rising Damp... to Vicious

Frances de la Tour's 50-year triumph

'Rising Damp' brought De la Tour such recognition that she could be forgiven if she'd never been able to move on. But at 70, she continues to flourish - and to beguile
'That Whitsun, I was late getting away...'

Ian McMillan on the Whitsun Weddings

This weekend is Whitsun, and while the festival may no longer resonate, Larkin's best-loved poem, lives on - along with the train journey at the heart of it
Kathryn Williams explores the works and influences of Sylvia Plath in a new light

Songs from the bell jar

Kathryn Williams explores the works and influences of Sylvia Plath
How one man's day in high heels showed him that Cannes must change its 'no flats' policy

One man's day in high heels

...showed him that Cannes must change its 'flats' policy
Is a quiet crusade to reform executive pay bearing fruit?

Is a quiet crusade to reform executive pay bearing fruit?

Dominic Rossi of Fidelity says his pressure on business to control rewards is working. But why aren’t other fund managers helping?
The King David Hotel gives precious work to Palestinians - unless peace talks are on

King David Hotel: Palestinians not included

The King David is special to Jerusalem. Nick Kochan checked in and discovered it has some special arrangements, too
More people moving from Australia to New Zealand than in the other direction for first time in 24 years

End of the Aussie brain drain

More people moving from Australia to New Zealand than in the other direction for first time in 24 years
Meditation is touted as a cure for mental instability but can it actually be bad for you?

Can meditation be bad for you?

Researching a mass murder, Dr Miguel Farias discovered that, far from bringing inner peace, meditation can leave devotees in pieces
Eurovision 2015: Australians will be cheering on their first-ever entrant this Saturday

Australia's first-ever Eurovision entrant

Australia, a nation of kitsch-worshippers, has always loved the Eurovision Song Contest. Maggie Alderson says it'll fit in fine
Letterman's final Late Show: Laughter, but no tears, as David takes his bow after 33 years

Laughter, but no tears, as Letterman takes his bow after 33 years

Veteran talkshow host steps down to plaudits from four presidents
Ivor Novello Awards 2015: Hozier wins with anti-Catholic song 'Take Me To Church' as John Whittingdale leads praise for Black Sabbath

Hozier's 'blasphemous' song takes Novello award

Singer joins Ed Sheeran and Clean Bandit in celebration of the best in British and Irish music
Tequila gold rush: The spirit has gone from a cheap shot to a multi-billion pound product

Join the tequila gold rush

The spirit has gone from a cheap shot to a multi-billion pound product
12 best statement wallpapers

12 best statement wallpapers

Make an impact and transform a room with a conversation-starting pattern
Paul Scholes column: Does David De Gea really want to leave Manchester United to fight it out for the No 1 spot at Real Madrid?

Paul Scholes column

Does David De Gea really want to leave Manchester United to fight it out for the No 1 spot at Real Madrid?