Whole course of dealing: the focus is not on financial contributions

In Stack v Dowden the House of Lords held that where property is in joint names there is a presumption of  a beneficial joint tenancy so that the parties are equally beneficially entitled to it on severance. This presumption is only rebutted in unusual cases where there is evidence to show that the parties’ common intention was that ownership should be shared in some other way. When considering whether the presumption has been rebutted, the Court can look at the whole course of dealings between the parties. The Court is not limited to examining the parties’ respective financial contributions to the purchase of the property.

In Fowler v Barron ([2008] EWCA Civ 377, CA (Eng)) an unmarried couple cohabited for over twenty years and had two children. Then they separated. The family home was in joint names but there was no declaration of trust. Mr B had paid all of the initial purchase price. He had paid the mortgage instalments and all other expenses directly related to the property. Ms F had paid for clothes, school trips and so on. Mr B claimed to be the sole beneficial owner of the property. The Court of Appeal found that the parties were equally beneficially entitled to it. The fact that the title was in joint names created a presumption that this was so. There was nothing in the whole course of dealings between the parties to rebut the presumption. The fact that Mr B had made all of the direct payments for the purchase did not rebut the presumption. The parties had treated their income and assets as a single pool (para. 46)

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