Dr Azari Ebrahim Hilal Aldoukhi v Dr Maytham Mahmoud Haji Haidar Abdullah

Where land is acquired in joint names with an express declaration of trust, that declaration ordinarily determines the parties’ beneficial interests. Rectification, rescission or setting aside requires a recognised vitiating factor. A power of attorney authorising administration does not, without clear authority and consent, permit the attorney to deprive the donor of a beneficial interest or impose liability for the attorney’s own debt.

Under Part III of the Matrimonial and Family Proceedings Act 1984, the court may adjust interests in an English matrimonial home after an overseas divorce, even where the parties’ English connection is limited and foreign provision has been made. The discretion must be exercised proportionately, having regard to the statutory factors, comity, the children’s welfare and reasonable needs.

The applicant, a Kuwaiti former wife, brought proceedings under the Trusts of Land and Appointment of Trustees Act 1996 concerning three London properties acquired in the parties’ joint names. She also sought financial provision under Part III of the Matrimonial and Family Proceedings Act 1984 following a Kuwaiti divorce, relying on two properties as matrimonial homes.

The respondent argued that the applicant held no beneficial interest, or held it for him, relying on powers of attorney, alleged loans and an alleged common intention. He also argued that the English court should not intervene because the parties and children were based in Kuwait and financial provision had been made there. The central issues were the effect of the express declarations of trust, the powers of attorney, equitable accounting, matrimonial-home jurisdiction and the proper exercise of the Part III discretion.

1. TOLATA claim. The three London properties were held by the parties as joint tenants under express declarations of trust. On severance, each was entitled to an equal share. The principle in Goodman v Gallant applied. The respondent failed to establish any common intention that he should own the properties beneficially or any basis for rectification, rescission, proprietary estoppel or other vitiating relief.
2. The powers of attorney were administrative. They authorised the respondent to manage property and execute documents, but required him to act in the applicant’s best interests and account to her. They did not transfer her beneficial interests. The respondent could not use them to impose liability for loans owed, in substance, to himself or to charge the properties for his own benefit. The applicant therefore owed no liability to Shamu.
3. Equitable accounting was available after severance. The respondent could not recover ordinary mortgage instalments, service charges or similar payments because he controlled the properties and could have occupied, let or sold them. He was entitled to account for one half of the £1,534,085 UBS mortgage repayment, namely £767,042.
4. Part III claim. Albion Gate and Craven Street were matrimonial homes. The parties had set up home there together; investment use did not prevent that conclusion, and separate bedrooms did not determine matrimonial status. The court had jurisdiction under section 15(1)(c) of the Matrimonial and Family Proceedings Act 1984.
5. Applying Agbaje, the court considered the parties’ strong Kuwaiti connections, the provision made in Kuwait, the applicant’s lack of capital, the respondent’s materially understated disclosure and the children’s welfare. It would be disproportionate to transfer the respondent’s interests outright, but fair to restore the £767,042 deducted through equitable accounting. Each party was therefore to receive £1,909,375 from the net equity.
6. The properties were ordered to be sold, with net proceeds divided equally after sale costs and UBS mortgages. The respondent was directed to pay £767,042 from his share to the applicant. A contingent lump sum protected the applicant against any later liability to Shamu, up to the respondent’s remaining share.

First-instance judgment. No appellate history is stated in the judgment.