Anne Morag Fotheringhame v Antony David Nelson

In quantifying beneficial interests in a jointly owned home after cohabitees separate, the court must consider the whole course of dealing between the parties in relation to the property. Where their actual intention about changed shares cannot be inferred, the court may impute what reasonable and just people would have intended. Relevant payments need not receive equal weight. An appeal against an evaluative judgment succeeds only for an identifiable flaw, such as failure to consider a material factor, an error of principle or a rationally unsupportable conclusion.

The parties jointly purchased a home, separated in 2003, and thereafter the appellant remained in the property with their children while meeting most property-related expenditure. The respondent retained mortgage liability and made child maintenance payments.

On the respondent’s claim under the Trusts of Land and Appointment of Trustees Act 1996, the recorder declared beneficial shares of 80.7% for the appellant and 19.3% for the respondent. The appellant appealed, arguing that relevant expenditure and unpaid child maintenance had not been properly considered and that her case had been mischaracterised.

1. Appeal dismissed. The recorder had made an evaluative judgment when imputing the parties’ fair shares. The appellate court was not to conduct the balancing exercise afresh. Intervention required an identifiable flaw, including failure to consider a material factor, an error of principle or a rationally unsupportable conclusion.
2. The recorder had considered the appellant’s mortgage interest, council tax, repairs and maintenance. Significant weight could properly be given to mortgage payments. Limited weight could properly be given to modest maintenance expenditure because it maintained rather than improved the property. Council tax primarily reflected occupation rather than ownership, and contents insurance principally protected personal belongings. The treatment of buildings insurance was not shown to be objectionable.
3. Outstanding child maintenance can in principle form part of the parties’ financial history when beneficial interests are imputed, subject to avoiding double liability. However, the amount outstanding had not been determined and the appellant had not shown that it had been advanced below as a factor relevant to quantification. It was therefore not established as a material omitted factor.
4. The recorder’s description of the appellant’s case as one in which the respondent’s interest was reduced after separation was, at most, capable of better expression. It accurately reflected her case that his share was no more than 5%. Any mischaracterisation did not itself establish an error in the evaluative judgment.
5. The appeal court rejected the invitation to re-evaluate the evidence or order a retrial. The recorder’s declaration of the parties’ beneficial shares and consequential orders stood.

• High Court, Chancery Appeals: The appeal was dismissed and the recorder’s decision was upheld.
• Permission to appeal: Leech J granted permission in part on 20 November 2025 and released the appeal for determination.