The Court of Appeal has effectively given guidance on the application of Stack v. Dowden [2007] UKHL 17 where one is faced with a transfer into joint ownership and no express statements as to shares in the property in Fowler v Barron [2008] EWCA Civ 377 (23 April 2008).
At 21:
To recapitulate, the important points decided by the House for the purpose of this appeal were as follows. The legal technique that the court will use to ascertain whether both joint owners who had been co-habitees had a beneficial interest is that of the common intention constructive test, rather than that of resulting trust. This will enable the court to take a holistic view of the whole of the parties’ conduct so far as it illumines their shared intentions about the ownership of the property. The court will not impose any particular allocation of property on the parties. It is not a question of the court deciding what is fair as regards the division of ownership but of determining what the co-owners’ shared intentions were as regards beneficial ownership. This was a deliberate policy choice to make the law respond to current needs: see per Baroness Hale at [60]. Where, as here, a house is transferred into the joint names of two individuals as their home, without any declaration of trust, the transfer will indicate that the parties intended to own the house in equal shares and thus the onus will be on the one (here, Mr Barron) who asserts that property is owned by them other than in equal shares to show that they had a shared intention to own the property in some other shares. The conduct that the court will take into account will include, but is not limited to, the financial contributions that they made towards the acquisition of the property or repayment of any loan raised for such purpose. The onus will not be easy for that person to discharge.
Evidence purporting to rebut the presumption of joint beneficial ownership must be of the parties shared intentions, or of a later shared change of intention.
35. In determining whether the presumption is rebutted, the court must in particular consider whether the facts as found are inconsistent with the inference of a common intention to share the property in equal shares to an extent sufficient to discharge the civil standard of proof on the person seeking to displace the presumption arising from a transfer into joint names.
36. The emphasis is on the parties’ shared intentions. As Lord Diplock said in Gissing v Gissing [1971] AC 886 at 906B-C, “…the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party.” This would be broadly consistent with the principles applicable to the interpretation of a written document, if that had set out their intention.
When assessing evidence, attention should be given to Lady Hale’s warning at para 68 of Stack:
In family disputes, strong feelings are aroused when couples split up. This often leads the parties, honestly but mistakenly, to reinterpret the past in self-exculpatory or vengeful terms. They also lead people to spend far more on the legal battle and is warranted by the sums actually at stake. A full examination of the facts is likely to involve disproportionate costs. In joint names cases it is also unlikely to lead a different result, unless the facts are very unusual.
In this case, the lower Court’s finding of no interest for Ms Fowler in the property (on the basis of contribution to purchase and mortgage as a resulting trust issue) was overturned, and a 50% interest found. In particular, shared household expenses, although none directly related to property expenses, were found sufficient to infer that it was not important to the parties who paid for what specifically or respective size of contribution. Evidence of mutual wills also played a part.
It was noted that Stack v Dowden involved a quite unusual separation of finances.
From this, it is clear that the presumption of joint beneficial interest is to be taken seriously. Rebuttal evidence will have to be pretty strong.