Bernard v Josephs [1982] Ch 391

Trust of the family home; cohabitees ascertainment of their beneficial interests.

Facts

Bernard and Josephs purchased a house where they lived as man and wife, holding the title to the property in joint names with no declaration of trust. Both parties worked and they had joint responsibility for the mortgage. Part of the property was let out to tenants. Three years later, the relationship broke down and Bernard left the house. Josephs remained in the property, remarried, continued to let out parts of the house, and continued to pay the mortgage payments. Bernard claimed a half share of the house after the discharge of the mortgage.

Issues

Josephs claimed the property was not held in equal shares because he had contributed far more to the initial purchase price, and also after the property had been acquired. He asserted it would be unjust to award Bernard a half share and requested an order for sale be postponed until her interest could be calculated proportionately, and he would then buy her out of the house. Bernard contended that since they both agreed to buy the property jointly and both took responsibility for the mortgage, the property should be divided equally because both should be considered as having contributed equally.

Decision/Outcome

When ascertaining the respective shares held by cohabiting couples in property held in joint names with no declaration of trust, the parties should be treated as though they were married. The shares should ordinarily be calculated at the time of separation, but later events may be considered relevant after the relationship break down. The property was held in equal shares subject to the discharge of the mortgage, and account was to be given to the extra mortgage instalments paid by Josephs.