Fowler v Barron (Rev 1)

Where a family home is conveyed into the joint legal names of cohabitees without an express declaration of trust, they are presumed to own the beneficial interest equally. The party asserting different shares bears a heavy burden of proving a different shared intention.

The inquiry is into the parties’ shared intentions, actual, inferred or imputed from their whole course of conduct. It is not an arithmetical assessment of financial contributions or an exercise in imposing the court’s view of fairness. A private, uncommunicated intention cannot rebut the presumption.

The parties cohabited for many years and bought their family home in joint names. Mr Barron provided the deposit, funded the balance largely from the sale of his flat, and paid the mortgage and fixed property outgoings. Miss Fowler paid other household and child-related expenses from her income. They had no express agreement or declaration of trust as to their beneficial shares.

His Honour Judge Barratt QC, sitting in Chichester County Court, held that Miss Fowler had no beneficial interest, principally by reference to her lack of direct or indirect contribution to the acquisition cost. Miss Fowler appealed. The central issue was whether that approach was lawful following Stack v Dowden [2007] 2 AC 432, and whether the presumption of equal beneficial ownership had been rebutted.

1. Appeal allowed unanimously. The court declared that Miss Fowler held a one-half beneficial share and ordered sale of the property.
2. Arden LJ held that the judge had erred in principle by approaching the matter through resulting trust principles and concentrating on acquisition finance. Applying Stack v Dowden [2007] 2 AC 432, a home conveyed into the joint names of cohabitees is presumed to be beneficially owned equally. The person contending otherwise must rebut that presumption by evidence of a different shared intention.
3. The required inquiry concerns the parties’ whole course of conduct insofar as it illuminates their shared intentions about ownership. The court must not decide what division would itself be fair, and unequal contributions to purchase or mortgage costs are not conclusive. The inquiry includes the domestic purpose of the home, financial and household arrangements, and direct and indirect contributions.
4. Mr Barron’s uncommunicated belief that joint ownership would operate only by survivorship if he died first was incapable of establishing a shared intention. His mistaken understanding of the legal effect of joint registration was likewise immaterial. The mutual wills were affirmative evidence that each party was understood to have a beneficial interest.
5. Although Mr Barron had paid the acquisition costs and fixed outgoings, Miss Fowler’s spending on household and child-related needs was properly treated as contribution to expenses for which both were responsible. The evidence did not show financial separation of the exceptional kind in Stack. It therefore did not rebut the presumption of equal beneficial ownership. Toulson LJ agreed, stressing that fairness was not the legal question; Waller LJ agreed with both judgments.

• Court of Appeal (Civil Division) Allowed the appeal and replaced the declaration that Miss Fowler had no beneficial interest with a declaration that she held one half of the property.
• Chichester County Court His Honour Judge Barratt QC declared on 19 April 2007 that Mr Barron was solely beneficially entitled to the jointly registered property.