DS v GB

This dispute falls within the financial remedies proceedings commenced by the husband’s Form A dated 28^th November 2023; but it is not the final hearing of that dispute. Two years on, almost to the day, from Form A, this is a preliminary issue hearing. (I pause to say that if it had been my task to case manage this case I would not have directed a separate preliminary issue hearing and would have preferred a combined final hearing; but my first involvement with this case has been at this hearing, where the case management directions were made by somebody else long before my involvement).

My task at this hearing (per previous case management orders) is to determine the following issues:-

The answer to these questions will determine the majority of the computational issues in the case and will be followed by a further hearing to resolve any distributional issues which cannot be compromised without a further hearing.

For the purposes of the current hearing (though not necessarily any future hearing), the following figures are agreed so as to identify the gross value and the net value of the four real properties concerned:-

The orders that I can actually make at this stage are constrained by two matters. First, there is no conditional order of divorce, indeed the husband (surprisingly, since it is not opposed by the wife) has never made an application for this. This needs to be attended to by the husband urgently as no final orders can be made until he has achieved this. Secondly, it appears that the mortgagees of the various real properties potentially affected by these applications have not been served. They should have been: see FPR 2010, Rule 9.13(3). This should now be remedied urgently before the next hearing in this case, indeed the respective mortgagees will need to be told about the contents of this judgment where it is relevant to them individually. My view is that these constraints do not prevent me from answering the above questions, even if the implementation of any consequences must await the correction of these omissions.

For avoidance of doubt, it is expressly conceded by the husband that I should not (now or later) make any order which has the effect of interfering with the occupation at the Uxbridge Road property during their lifetimes by the wife’s parents-in-law from her first marriage (to whom I shall refer as ‘the grandmother’ and ‘the grandfather’, or collectively as ‘the grandparents’, who are elderly and fragile). Further, no other party seeks such an order. For these reasons it has been possible to avoid joining the grandparents as parties to this litigation. This is convenient because their joinder would have presented difficulties in the context of their age and fragility. Although the grandmother did give remote oral evidence, her fragility was painfully obvious.

The court was presented with an electronic bundle running to 1,981 pages and a number of other documents have been exchanged during the final hearing. I have considered all the documents presented to me, in particular I have considered:-

I have also heard oral evidence from the wife, the husband, SG, SB, AB (the wife’s first husband) and the grandmother, all subjected to appropriate cross-examination.

I have also had the benefit of full submissions from each counsel in their respective opening notes and their closing oral submissions and from SG and SB in their closing oral submissions.

I propose first to set out a fairly detailed chronology to set the context for the various disputes which require resolution at this hearing.

The grandfather is now aged 86 and the grandmother is now aged 87. They both have some significant health issues and a degree of fragility. They have an Indian heritage but have lived in England for most if not all of their adult lives, but the grandmother speaks little English and gave her evidence through an interpreter. It is common ground that they purchased the Uxbridge Road property in 1975 and have lived there ever since, now for more than 50 years. They brought up their two children in Uxbridge Road. Very sadly, one of their children died of cancer a number of years ago and they have one surviving child, that is AB. AB has combined a troubled life (he has spent some time in prison and has engaged in alcohol and domestic abuse) with a good work record (27 years and ongoing as a bus driver). He has lived at Uxbridge Road for the entirety of his life and is now aged 58.

The wife is now aged 58. She has an Indian heritage; but has lived all or most of her life in England. She speaks fluent English. She has some experience in administrative matters and worked as a school clerical officer at a local school from September 1997 to 2^nd July 2008. On 30^th May 1989 she married AB and went to live with him and his parents (the grandparents) at Uxbridge Road.

The marriage between the wife and AB produced three children: MB (a female now aged 32), SB (a male now aged 30) and SG (a female now aged 27). The whole family lived at Uxbridge Road until the wife and AB had a major falling out, accompanied by domestic abuse, and the wife left Uxbridge Road with the three children. They were housed in local authority rented accommodation in Southall. There is a dispute as to when precisely this was, but the parameters of the dispute are relatively modest (as between late 2007 and early to mid-2008) and nothing very much turns on the difference; but on a balance of probabilities I think it likely that this was in fact in late 2007. Divorce proceedings followed with Decree Absolute ordered on 21^st July 2009. Since neither the wife nor AB owned any properties or had a substantial income there were no financial remedies proceedings between them.

The husband is now aged 46. He was born and brought up in India and has limited English (he gave evidence through an interpreter). In 2007 he was in England without any immigration status and in late 2007 (I find) met the wife, by then separated from AB, although not yet divorced. He neither speaks nor reads much English and so his grasp of administrative matters is limited, but I have the clear impression that he is a skilled and hardworking builder (indeed this seems to be common ground) and that he has made a good income from this from at least 2007 to the present day. It appears that disclosure of his income to HMRC over the years has been very limited.

On 28^th May 2011 the wife and the husband were married. There was, however, a dispute before me as to when – in the course of the period between late 2007 (when they met) and May 2011 (when they married) - they began a committed relationship triggering the commencement of the ‘duration of the marriage’ calculation. In deciding this point, I am cognisant of the jurisprudence on this subject which appears cases such as VV v VV[2022] EWFC 41, IX v IY [2018] EWHC 3053, GW v RW [2023] EWHC 611 and McCartney v Mills McCartney [2008] EWHC 401, including the basic proposition that “where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently”. My clear conclusion is that the triggering date for these purposes was mid-2008, perhaps June 2008, and that this was the start of the seamless pre-marital cohabitation which should be treated as being part of the ‘duration of the marriage’. The influential facts, matters and findings causing me to reach this conclusion include the following:-

I note that the husband and wife had a joint bank account from as early as 2009 and that he registered his sole banking account to the wife’s address in Southall from at least as early as 2009. Whilst not impossible, it seems unlikely that these things would have happened if there had not been a committed relationship between the husband and the wife.

For avoidance of doubt, I want to make clear that in reaching my conclusion I have not attached weight to the statement from neighbours who lived next door to the wife in Southall and who signed a statement saying that the husband had moved in next door in 2007) because they failed to attend court to give live evidence and face cross-examination.

On 15^th September 2010 the wife and husband and the children moved from Southall to Penn Road. I shall discuss its purchase and ownership in detail below, but the headline is that the wife became the sole legal owner of Penn Road. The Penn Road property, being in Slough, quickly became inconvenient to the children who were still at school in Southall, for which the commute was difficult. Indeed the children spent time back with the grandparents at Uxbridge Road because it was nearer their school; but this was not ideal. Accordingly, the wife and the husband decided that it would be desirable to move back to Southall.

An opportunity arose in 2011 for a move back to Southall. On 17^th September 2011, there were two important transactions, both of which I shall be examining in detail below. The headlines were that the legal ownership of Uxbridge Road was transferred to the wife (where it remains), and she simultaneously remortgaged Uxbridge Road to release deposit monies for the purchase of Allendale Avenue in Southall, which was purchased in her sole legal name on that same day. After a period of refurbishment of Allendale Avenue, in about June 2012, the husband and the wife and the children moved from Penn Road to Allendale Avenue. This was the family home for the remainder of the marriage. Penn Road was thereafter and to this day let to tenants.

On 27^th November 2018 Denbigh Road was purchased. Again, I shall be examining the details of its purchase below, but the headline is that the legal title was transferred into the wife’s sole name on that day and so it remains.

In about April 2020, the husband and the wife had a bad falling out (the trigger dispute appears to have been a difference of view as to how to deal with the husband’s nephew ‘P’) and the husband left Allendale Avenue and went to live at Denbigh Road and to live separately. This situation remained until the parties reconciled in early January 2021, when the husband returned to living at Allendale Avenue, arriving just in time to celebrate SG’s engagement party. The reconciliation was sufficiently strong that the husband paid for SG’s wedding reception in September 2021 (a cost of about £17,000).

In the course of the 2020 separation, on 15^th October 2020, the wife transferred the legal ownership of Allendale Avenue to SB. Again, I shall be examining this transaction in detail below. There is a live issue (which I shall resolve below) as to whether or not the husband was aware of this transaction at the time or only became aware of it much later.

Sadly, in May/June 2023, the marriage broke down again, this time terminally. The husband again moved out of Allendale Avenue on 10^th June 2023 and he has subsequently been living in rented accommodation. The husband quickly consulted solicitors and on 29^th June 2023 issued a divorce application on the portal (case number 1688-0481-5151-7402). As I have said, this divorce application has not yet progressed to conditional order of divorce, although there is no obvious reason why this should not now happen.

On 2^nd July 2023 the wife transferred £20,000 in cash to SG. There is a live issue (which I shall resolve below) as to whether this was a bona fides late wedding gift (as the wife asserts) or a deliberate attempt to hide money (as the husband asserts).

On 28^th November 2023 the husband issued his Form A. The case has since then been through a number of directions hearings and an FDR (which sadly did not produce a compromise) and a case management decision to hold this preliminary issues hearing. The case management directions require the production of witness statements but do not call for pleadings, which in my view they should have done: see TL v ML [2005] EWHC 2860. Notwithstanding this deficiency, it has been possible to identify from the statements and legal submissions the ‘pleaded’ cases of each party sufficiently to proceed to determine the preliminary issues.

On 4^th July 2024 the husband issued an application under Matrimonial Causes Act 1973 in which he sought to set aside the transfer of Allendale Avenue from the wife to SB on 15^th October 2020 and the transfer of £20,000 by the wife to SG on 2^nd July 2023. The wife opposes these applications, as do SG and SB, who have been joined as intervenors to give them the opportunity to respond.

I have heard this preliminary issues hearing in the course of this week, 1^st to 5^th December 2025. Evidence and submissions were closed in the early afternoon of Day 4 and I am handing down this written judgment on the afternoon of Day 5.

Two separate areas of law arise for consideration here.

First, it is necessary (in the absence of any express declarations of trust for any of the properties – this family was not one which evinced any enthusiasm for the creation of express trust documents) to consider the principles governing the creation of constructive trusts. The law on this is now tolerably clear and it suffices for me to cite an extract from the Dictionary of Financial Remedies (2025 edition) at p.114 to set out how this law operates:-

“Where there is no express declaration of trust the determination of the beneficial interests will ordinarily be governed by constructive trust principles: see Oxley v Hiscock [2004] EWCA Civ 546, [2004] 2 FLR 669; Stack v Dowden; Jones v Kernott [2011] UKSC 53, [2012] 1 FLR 45. The starting point in relation to a family home is that equity will follow the law so that a sole legal owner will be a sole beneficial owner and joint legal owners will hold joint and equal beneficial interests. The onus of displacing this presumption lies on a party contending for a different outcome who must establish that the interested parties had a different common intention formed at the time of the purchase of the property or later. Sometimes the common intention may be clearly recorded in a document. Failing this, the common intention has to be deduced objectively from the parties’ conduct, i.e. inferred, but 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 and conduct. Examples of the sort of evidence which might be relevant to drawing such inferences include any advice or discussions at the time of the transfer which cast light upon their intentions then, the reasons why the legal title was recorded as it was, the purpose for which the property was acquired, the nature of the parties’ relationship, how the purchase was financed, both initially and subsequently, and how any cohabiting parties arranged their finances. The party asserting a beneficial interest different to the legal title must demonstrate their detrimental reliance on the parties’ common intention that they have such a beneficial interest: see O’Neill v Holland [2020] EWCA Civ 1583 and Hudson v Hathway [2022] EWCA Civ 1648. Where it is established that the parties had a common intention which is different from that recorded on the legal title then the court will ordinarily declare the beneficial interests in accordance with their common intention. If the court concludes that the parties had a common intention which is different from that recorded on the legal title, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, the court may then, and only then, go on to consider the share which the court considers fair having regard to the whole course of dealing between them in relation to the property. The court may impute what the court considers an objectively fair solution, not just infer what the parties must have intended. In ascertaining a fair solution, financial contributions to the purchase are likely to be very important, especially where the parties are not cohabitants. In some cases, the requirement of fairness may cause the court to attach greater weight to other factors to reach a result which is different from that which would arise solely from an analysis of such contributions, but the court in these cases ‘is not concerned with some form of redistributive justice’ and what is important is ‘the whole course of dealing between them in relation to the property’ not whether one party has ‘endured years of abusive conduct by her partner’.”

Secondly, it is necessary to consider the court’s powers in setting aside a transaction pursuant to Matrimonial Causes Act 1973, section 37. The relevant provisions of Matrimonial Causes Act 1973, section 37 read:-

It is to be noted that at the commencement of the relationship between the husband and the wife (say June 2008), neither of them had any interest in real property, indeed neither of them had any assets of significance. By the end of the marriage in June 2023, some 15 years later, there had been dealings with four real properties, and in making a computational assessment of the current situation I propose to go through all their real property and other dealings in detail over this 15 year period. It is helpful to deal with the properties separately, but in broad chronological order.

In the period from June 2008 until the purchase of Penn Road on 15^th September 2010, the husband and wife lived in local authority rented accommodation in Southall.

It is common ground that the wife gave up her school employment on 2^nd July 2008 and, on her case, did not have remunerative employment thereafter until at least 2011. She may have received some state benefits in this period, but there was little opportunity for her to have accrued capital between 2008 and 2010 from her own resources and there was no convincing evidence of her having received any significant gifts or loans from friends or family members in this period.

In contrast the husband was working as a builder for the whole of the period between June 2008 and September 2010. He worked on a cash-in-hand basis and so there are no HMRC records and no very clear documentary evidence, but the schedule of works invoices which the husband produced for these proceedings (p.343), and on which there was little if any challenge during the hearing, suggested that he invoiced £135,850 in this period. Allowing for the fact that there would have been expenses to set off against these invoices for building materials etc., but noting that he was not paying income tax on this and was living at the wife’s home and therefore had limited housing expenses of his own, it is reasonable to conclude that he did have a good income in this period (I am minded to accept his suggestion of £6,000 to £7,000 per month) and was in a position to accrue a certain amount of capital.

The limited paperwork we have for the purchase of Penn Road on 15^th September 2010 establishes that it was purchased in the wife’s sole legal name for £145,000 (p.1974) with the benefit of a Santander mortgage of £100,000 (p.808). The Santander document suggests that they were told that in 2010 the wife was then earning £37,230 pag at a school (she was not, having resigned in July 2008) and that the deposit monies had come from the “sale of previous property” (which it had not because there was no previous property to sell). The husband suggests that they used a broker to present deliberately false information to Santander and this suggestion is lent weight by the obviously incorrect information on the Santander document (p.808); but whilst I have some suspicions I do not have enough information to make findings to this effect and it is not necessary in the present context for me to do so. More importantly, it is plain that a cash deposit of about £45,000 had to be found from somewhere.

The husband’s case is that the source of the deposit money was, wholly or almost wholly, the accrued cash he received from his building works, which was received in cash and handed by him to the wife and placed in various bank accounts by her, including in the joint account. Although we don’t have a very full document trail here, the bank statements we do have (for example p.952 & p.1139-40) do show some large cash deposits and movements which are consistent with the broad picture presented by the husband and I have not been persuaded that there is any other feasible explanation for the accrual of this money. On a balance of probabilities I find that the husband’s case is correct, that the source of all or almost all of the £45,000 deposit was his accrued cash earnings.

The husband says that because of his lack of understanding of written or spoken English, and his lack of an immigration status at this stage, he was content to trust the wife to deal with legal formalities, including property ownership documentation. He was aware that his name was not on the legal documents but he regarded himself informally as a joint and equal owner. He told me that he was in a committed relationship with the wife and trusted her broad assurances that, whatever the title documents said, Penn Road was a joint asset, was ‘their’ property, not ‘her’ property, ‘their’ home, not ‘her’ home. He was content to treat the relationship as a partnership in which he was the breadwinner and she was the home-maker and child-carer, but in which they shared the fruits of their partnership. He was content to treat the wife’s children as if they were his own (and there is other evidence that these relationships were good until the breakdown of the marriage). The husband told me that, in the same spirit, he was content to carry out significant refurbishment work at Penn Road without thinking of charging the wife for it and he was content to be the main provider of income to meet the mortgage payments on the Penn Road Santander mortgage while they were living there. Having heard all the evidence, I accept the husband’s evidence on all this, which was (for me) entirely convincing.

Applying the constructive trust principles set out above to the factual situation as I found it to be, I have reached the clear conclusion that the husband is correct in asserting that I should find that the starting point that the beneficial interest should follow the legal interest should be displaced, that there was a common intention that the husband would have a beneficial interest in Penn Road (both actual arising from their conversations and inferred from their conduct) and that his interest should be treated as a half share (I reach this conclusion both from their actual common intention arising from their conversations and an imputed result which is fair in the context of the course of their dealings overall). I therefore propose to declare that Penn Road is held by the wife on trust for the husband and the wife as tenants in common in equal shares.

Even if I had found there was insufficient material to create a constructive trust, it occurs to me that the application of the sharing principle to matrimonial property acquired during the marriage (including seamless pre-marital cohabitation) would in this case produce a very similar, if not identical, outcome in relation to Penn Road.

There is a further complication in relation to Penn Road in that the wife remortgaged the property on 17^th September 2017. A fresh mortgage was taken out with The Mortgage Works, increasing the mortgage so that it now stands at £226,994. This re-mortgage released the sum of £143,361 (p.546) to the wife. What happened to this money is explained below, but the re-mortgage does not, in my view, change my view of the beneficial ownership of the property, albeit that it reduced the value of the beneficial interest.

The background to the acquisition by the wife of the Uxbridge Road property is a rather different story.

This was the home of the grandparents, purchased by them in 1975, and where they have lived ever since. Before the wife appeared on their scene, they lived there with their son AB. At some stage (we have not been able to identify a date) Uxbridge Road and its mortgage were placed into the joint names of the grandparents and AB. The grandparents saw this as normal estate planning in the context of their culture and this is perfectly understandable. By 2009, however, AB had some significant personal problems (most seriously he appears to have had a problem with alcohol and it is said he was domestically abusive to the wife, causing the breakdown of their marriage – in fairness to AB I should record that I make no findings against him in this regard as I have not heard detailed evidence about it). As a result of the perception by the grandparents of AB’s personal problems, it appears that the grandparents decided to replace AB as the third name on the Uxbridge Road title with that of the wife. This was effected on 14^th September 2009 (p.870). Although it is an unusual decision to give such rights to a divorced former daughter-in-law, especially without the protection of a carefully drafted trust document, I am persuaded that this should be treated as a sign that they had greater trust in her than their troubled son to help them with administrative and succession matters and, of course, the grandparents did retain their ownership and control of Uxbridge Road.

What happened two years later on 17^th September 2011 is rather more troubling from the grandparents’ perspective and to the court. On that day the legal title of Uxbridge Road was transferred from the grandparents and the wife into the sole name of the wife (p.1970). By this time, of course, the wife was remarried. No trust deed was created to protect the ongoing interests of the grandparents and so, in theory at least, they could have been asked to leave their home at the whim of their divorced former daughter-in-law. Likewise, the wife was now (on the face of it) in control of whether her ex-husband AB could remain living in his home of many years. The absence of a trust deed left the grandparents and AB in a vulnerable position.

The wife paid no consideration for this transfer. Indeed, not only did she pay no consideration for this transfer, but she also on 17^th September 2011 remortgaged Uxbridge Road to release monies to her for her own use. Immediately prior to this transaction, the outstanding mortgage on Uxbridge Road was £49,711 (p.851). On that day a fresh mortgage was taken out in the wife’s sole name with The Mortgage Works in the sum of £129,935 (p.850). Once the existing mortgage had been redeemed and certain costs paid, the sum of £76,643 was released to the wife (p.851) and, I am satisfied, used largely to provide a deposit to purchase Allendale Avenue in her sole legal name. I shall discuss the consequences of this release of cash in the context of my analysis of the Allendale Road situation (see below), but I now need to determine where this left the position in relation to Uxbridge Road.

What happened on the ground at Uxbridge Road in the period after 17^th September 2011 was that the grandparents and AB remained living there and that AB has paid to the wife regular payments which were broadly (though not to the last penny) equal to the monthly mortgage payments on the Mortgage Works mortgage (this has varied over the period between about £600 per month and about £900 per month). The balance on the mortgage has remained broadly the same (it now stands at £134,538). In the bank statements up to August 2023 the appellation on the bank statements for AB’s payments was “rent payments”. After August 2023 it changed to “mortgage payments”. On reflection, I am not sure that this change is very significant in the context of my task.

Another potentially significant event was that, on 19^th May 2019, both the grandparents executed wills (p.907 & p.910) in which they purported to leave “the freehold property situate at and known as Uxbridge Road to my son AB…for his own use and benefit”. Neither of these documents refers to the fact that, in fact, this property is (on the face of it) owned by the wife, not subject to any deed of trust, so there was nothing to leave to AB.

It has been the husband’s case that the court should regard Uxbridge Road as the property of the wife and that, as and when the grandparents are no longer alive, she will be free to do what she wishes with the equity in the property. It should be regarded as a resource available (eventually) to her in the context of a computational section 25 analysis within the financial remedies proceedings.

It has been the position of the wife, strongly supported by the grandparents’ written case, that I should declare that the wife holds Uxbridge Road on trust for the grandparents as joint tenants such that their beneficial interest should pass under their wills (or the will of the survivor if they remain joint tenants until one of them dies) which, unless they changed them in the meantime, would mean that AB in due course becomes the owner of the property and the wife would receive nothing (and that therefore Uxbridge Road should not be regarded as a resource in the financial remedies proceedings between the husband and the wife). Although the terms of such a trust have not been thought through in detail, it would follow that the grandparents would have to indemnify the wife against liability under the Mortgage Works mortgage, in practical terms via AB’s monthly payments during their lifetime, and thereafter by their successor, again probably AB.

This is very much what is set out in the grandparents’ statement of 8^th December 2024. Whilst the husband’s counsel properly observed that the grandmother was unsure in her oral evidence of precisely who had taken her statement and how it had been taken, and she did evince a degree of confusion about it, she did say that the statement represented her words and I think the grandmother’s confusion in her oral evidence is easily explained by her age and fragility rather than, as counsel suggested, a plan to mislead the court and I am persuaded that what she said was broadly true, in particular to the effect that she regarded the wife as trustworthy and had assured them that Uxbridge Road would remain in due course for the benefit of AB. I think it is significant that the grandparents plainly believed in 2019 that they had an interest to leave to AB in their wills and this is consistent with the ‘trust’ case, long before these proceedings began.

Applying the constructive trust principles set out above to the factual situation as I found it to be, I have reached the clear conclusion that the wife is correct in asserting that I should find that the starting point that the beneficial interest should follow the legal interest should be displaced, that there was a common intention that the grandparents would retain a beneficial interest in Uxbridge Road (both actual arising from their conversations and inferred from their conduct) and that their interest should be treated as being 100% of the beneficial interests (I reach this conclusion both from their actual common intention arising from their conversations and an imputed result which is fair in the context of the course of their dealings overall). I therefore propose to declare that Uxbridge Road is held by the wife on trust for the grandparents as joint beneficial tenants on the terms that they (and any successor owners of the beneficial interests) indemnify the wife against her obligations under the Mortgage Works mortgage. Uxbridge Road should not be treated as a resource within the financial remedies proceedings.

Allendale Avenue was purchased in the sole legal name of the wife on 17^th September 2011 for a purchase price of £237,500 (p.844). There was no deed of trust created. The purchase price was funded with a Halifax mortgage of £163,750 in the wife’s sole name. An additional cash sum of £79,046 had to be raised to pay for the deposit and the purchase costs (p.852).

I am persuaded that the majority of this £79,046, that is the sum of £76,643, came from the simultaneous release of monies from the Uxbridge Road re-mortgage described above (p.851). I have been persuaded by the evidence of the grandparents (supported by that of the wife) that this money should be seen as a gift by the grandparents to their three grandchildren, not to the wife. The grandparents expected this to be invested into a property for the benefit of their grandchildren, that is MB, SB and SG. They were particularly keen that this gift would give rise to the purchase of a property in Southall so that their grandchildren could have a home nearer their school.

This £76,643 is certainly one significant contribution to Allendale Road; but it is not the only contribution.

The residual amount (£2,403) came from the household resources of the wife and the husband’s household. In addition, the mortgage payments thereafter were funded from the household income, which consisted of the husband’s earned income supplemented in due course by rent from Penn Road and the mortgage can properly be regarded as a contribution by the husband and the wife. Further, in the period between September 2011 and June 2012, the husband carried out significant improvements and refurbishments to the property at his own cost in terms of materials and time (I have heard of new bathrooms, a new open plan kitchen and an extension). So that when the family finally moved into Allendale Avenue in June 2012, it was a much improved property. There is little mathematical evidence of the value of these improvements, but I am persuaded that they were not insubstantial. A further contribution to Allendale Avenue was that, in September 2017, on the re-mortgage of Penn Road, some £70,000 was released which was used to reduce the Halifax mortgage on Allendale Avenue (p.774). In view of my findings about Penn Road, this should be regarded as a joint contribution from the husband and the wife.

Applying the constructive trust principles set out above to the factual situation as I found it to be, I have reached the clear conclusion that I should find that the starting point that the beneficial interest should follow the legal interest should be displaced. I am persuaded that there was a common intention that the beneficial interest would be shared between the husband, the wife, MB, SB and SG (both actual arising from their conversations and inferred from their conduct). In my view there was no clear common intention about the proportions of beneficial ownership and I must therefore impute a result which is fair in the context of the course of their dealings overall.

The cash contribution from the £76,643 gift represents 32.3% of the purchase price, but (to reflect the improvement work done by the husband) it is fair to assess a figure below that. My assessment is that I should regard the children’s share in the property as being worth 25% of its gross value and that I should regard the remaining 75% of the gross value to be held on trust for the husband and wife as tenants in common in equal shares, but that this interest is held subject to the mortgage.

I therefore propose to declare that Allendale Avenue was held by the wife on trust as to 25% for MB, SB and SG and as to 75% for herself and the husband as tenants in common in equal shares, this interest being subject to the mortgage.

There was a further development in relation to Allendale Avenue in that on 15^th October 2020 the wife transferred the legal title to SB. It is common ground that he paid no consideration for this transfer save that the property was re-mortgaged with Barclays Bank. This mortgage was taken out for £87,000 in October 2020 (which I assume was approximately the amount of the pre-existing Halifax mortgage after the £70,000 reduction in 2017) and has been paid down by SB to £73,398 now. He told me that he regarded himself as holding this property on trust for himself and his two sisters as tenants in common in equal shares.

The husband has applied to set aside the transfer to SB pursuant to Matrimonial Causes Act 1973, section 37. I am cognisant that the gap between the transfer (15^th October 2020) and the application (4^th July 2024) is more than three years so the burden of proof is firmly on the husband. Having considered the oral and written evidence on this, I have reached the clear conclusion that the husband has made out his case and that the transfer to SB should be set aside. Given my conclusions above, I take the view that the husband had a substantial beneficial interest in this property such that its transfer away to SB (if uncorrected) would certainly reduce his potential financial remedies claim so that the transfer is certainly a reviewable disposition. I am also satisfied that the transfer was made with the specific intention of impeding the husband’s financial remedies claim and that SB was well aware of this fact. The timing of the transfer, during a period when the husband and wife were separated and a divorce was a real possibility, points in that direction. Further, I am satisfied that the husband was expressly not told that it had been done so that, even after the reconciliation in 2021, he was unaware of it. I find that the wife and SB and SG have deliberately lied to me in saying that the husband was well aware of the transfer at the time. I am persuaded that he did not know about it until he consulted solicitors and they did a Land Registry check in June 2023. That is, in my view, the only feasible interpretation of the recorded and transcribed telephone call which took place on 15^th July 2023. Further, I believed his evidence to this effect and I found the contrary evidence to be unconvincing. I do not consider that SB can avail himself of a section 37(4) defence because he neither acted in good faith, nor was he unaware of the wife’s intention, nor did he give valuable consideration.

The mechanics of the setting aside should, in my view, involve the reimbursement to SB of any capital reductions in the mortgage between 2020 and now. If it is to be executed then Barclays Bank will need to be informed and will need to be given an opportunity to make representations on the mechanics of execution. This may depend on what is the final outcome of the financial remedies proceedings.

Denbigh Road was purchased in the wife’s sole legal name on 27^th November 2018 for a purchase price of £381,000 (p.1977). Again, there was no deed of trust.

The purchase was funded with a Santander interest only mortgage in the wife’s sole name in the sum of £284,965, the balance of which has not significantly changed and currently stands at £288,248. The mortgage payments since purchase have been met from a mixture of rental funds from Denbigh Road or Penn Road as well as general household income. As above, the husband was the main contributor to household income, at least until separation, and he has therefore made a significant contribution in that way.

In addition, cash to pay the deposit and purchase costs had to be found in the sum of approximately £118,000 (p. 856). The evidence of where this money came from is rather vague; but I am satisfied that some £60,000 of this sum came from the remortgage of Penn Road in September 2017. Given my findings about Penn Road, this has to be regarded as a joint contribution by the husband and the wife.

I am asked by the wife and SG to find that some £29,000 of this money came from a trust account held in her sole name such that this should be regarded as a contribution by her to the purchase of Denbigh Road justifying the grant of a beneficial interest. Whilst it is true that £29,000 did go through a trust account in SG’s name (p.552), the husband’s case is that this was, in reality, money which he had earned and given for safekeeping to the wife (just in the same way described above in relation to the Penn Road deposit) and that it should be regarded as a contribution by him and not by SG. Having heard SG’s explanation as to how the money ended up in her trust account and having looked at the relevant bank statement (p.552) I am afraid I prefer the husband’s version of events. I am happy to accept that SG is an intelligent and hardworking person, I do not accept her broad suggestion that all of this money (including £35,000 in the course of 2018) was contributed by her from money which she had earned as a private mathematics tutor and deposited in cash under her bed and later paid into the bank. I am afraid her explanation stretched credibility too far and I have concluded that she was not telling the truth. I am afraid that I cannot regard her as a reliable witness. I have concluded that what actually happened is exactly what the husband described and is very similar to what happened in relation to the purchase of Penn Road. The deposit cash was money that he had earned by doing building work for cash in hand over a number of years. I do not accept that SG contributed anything to the purchase of Denbigh Road.

At the stage that Denbigh Road was purchased, the marriage was very much on and its purchase was regarded by the husband and wife as a joint purchase. Much as he had done in relation to Penn Road in 2010, the husband was content to trust the wife to honour their joint purchase of a property to be held by them equally within the marriage.

Applying the constructive trust principles set out above to the factual situation as I found it to be, I have reached the clear conclusion that the husband is correct in asserting that I should find that the starting point that the beneficial interest should follow the legal interest should be displaced, that there was a common intention that the husband would have a beneficial interest in Denbigh Road (both actual arising from their conversations and inferred from their conduct) and that his interest should be treated as a half share (I reach this conclusion both from their actual common intention arising from their conversations and an imputed result which is fair in the context of the course of their dealings overall). I therefore propose to declare that Denbigh Road is held by the wife on trust for the husband and the wife as tenants in common in equal shares.

Even if I had found there was insufficient material to create a constructive trust, it again occurs to me that the application of the sharing principle to matrimonial property acquired during the marriage would in this case produce a very similar, if not identical, outcome in relation to Denbigh Road.

The final issue for me to decide is that the husband has applied to set aside the transfer to SG of the payment of £20,000 made on 2^nd July 2023 pursuant to Matrimonial Causes Act 1973, section 37.

It is not in dispute that this payment was made (p.885). It is not in dispute that the payment was made just a few days after the wife received the husband’s divorce application. It is common ground that by making this transfer the husband’s financial remedies sharing claim would have been diminished by the fact that the wife had £20,000 less money than she would otherwise have done so this is a reviewable disposition. The issue here is the wife’s intention.

In this case the gap between the transfer (2^nd July 2023) and the application (4^th July 2024) is less than three years so the burden of proof is firmly on the wife and SG to rebut the Section 37(5) assumption that “it shall be presumed, unless the contrary is shown, that the person who disposed of…or deal with the property did so…with the intention of defeating the applicant’s claim for financial relief.”

Having considered the oral and written evidence on this, I have reached the clear conclusion that the wife and SG have not made out their case and that the transfer to SG should be set aside. The timing of the transfer, just after the divorce application, makes it prima facie a very suspicious transfer and I was not at all convinced by the reasons advanced by the wife for it could be regarded as reliable. It was said to be a late wedding present (she had in fact married nearly two years before this) which could only be made in July 2023 because her pension fund had only just become available because of her age (she had in fact turned 55 in March 2022). I have the clear view that this payment was made exactly with the intention of impeding or reducing the husband’s financial remedies claim.

I will accordingly set aside the transfer. SG told me that she still has more than £20,000 in her savings account so I will expect her to transfer £20,000 back to the wife forthwith.

I am handing this judgment down by email to the parties, who were perhaps expecting me to deliver then judgment orally at 2.00 pm on 5^th December 2023 and were told to attend court by that time.

I therefore wish to give all the parties a proper opportunity to read the judgment and I will therefore now call the parties back in at 2.45 pm for me to discuss the next steps.

I will wish to discuss, inter alia, any costs applications arising out of this judgment, also how the case should progress from here and what orders I can and should make now, and what orders I cannot and should not make now.

I am hoping that, in any event, now that the parties have a clear picture of the computational part of my judgment, they will wish to identify how they might explore a compromise of the case overall.

Subsequent to this judgment the husband and the wife did compromise their financial remedies dispute.