D ‘The Weekly Law Reports, April 7, 1972 25 1 WLR. Reg. v. Licensing Ctte., Ex p. Pearcy (D.C.) Lord Widgery CJ. my judgment that is not so. I think they were wrong, I think they had jurisdiction to consider this application and that the order of mandamus should go. Asuwortu J. Tagree. Grurrrris J, [also agree. Application granted. Solicitors: F. C. Roope & Co. [FAMILY DIVISION] * COWCHER v. COWCHER 1971 Dec. 1, 2, 3, 20; 21 Bagnall J. Husband and Wife—Matrimonial home—Divorce—Ownership of house—House purchased in husband's name—Payments by wife to husband and husband's business at time of purchase— Payments by wife of mortgage interest—Extent of wife's interest ~Married Women's Property Act 1882 (AS & 46 Vict. c. 75), 5. ‘The parties were married in 1953. In 1963 a house was bought in the name of the husband as the matrimonial home. ‘The purchase price was £12,000. The husband paid a cash deposit of £1,000, the balance being raised by way of a £3,000 Joan upon overdraft from the husband’s bankers and an £8,000 Joan from an insurance company secured upon a mortgage of the house and a 25-year endowment policy on the life of the husband for the same sum with profits. The policy was written under the Married Women’s Property Act 1882 for the benefit of the wife. At the time of the purchase of the house the wife paid £3,063 to the husband’s business and £1,306 to the husband. In 1966 and 1968 the wife paid some mortgage interest and premiums on the policy. In May 1971 each party was granted a decree nisi of divorce on the ground of adultery and the marriage was dissolved by decree absolute in August 1971. ‘On the wife's summons under section 17 of the Married Women’s Property Act 1882 claiming a beneficial interest in the matrimonial home: — Held, (1) that a claim under section 17 of the Married ‘Women’s Property Act 1882 other than to absolute legal and beneficial ownership must be determined in accordance with equitable principles relating to trusts (post, p. 429, £); that the wife's beneficial interest in the house arose under a resulting trust from the actual provision of the purchase price unless a contrary consensus as to the proportions in which the parties ‘were to be taken as having provided the purchase moneys could [Reported by Mrs. Mary Bryn Davies, Barrister-at-Law] } Married Women’s Property Act 1882, s. 17: ‘‘In any question between husband and wife as to the title to or possession of property, either party, . .. may apply by summons or otherwise in a summary way to any judge . - . and the judge. . « ay make such order with respect to the property in dispus, nd as «he thinksThe Weekly,Law Reports, April 7, 1972 426 Cowcher v. Cowcher (Fam.D.) ts72] be inferred from the facts (post, pp. 4318=432p, 433H—434a); that the settlement of the policy on trust for the wife and the contemplation of the parties that in future the husband alone was to be the source of the family income were conclusive against such an inference (post, p. 4410); that the beneficial interests of the parties could not be altered by the mere pay- ment by one beneficial owner of a mortgage instalment properly payable by the other (post, p. 432); and, accordingly, that, as the actual source of the purchase money Was one-third as to.the wife and two-thirds as to the husband, the net pro- ceeds of sale of the house.were held on trust for the parties as tenants in common in those proportions subject to an equit- able accounting (post, p. 4415). Pettitt V. Pettitt {1970] AC. 777, H.L.(E,) considered. Gissing V. Gissing [1971] AC. 886, H.L(E.) applied. (2) That the total surrender moneys of the endowment policy must be applied towards payment of the mortgage debt not merely those attributable to the basic sum (post, p. 4424). Per curiam. It would be desirable as a matter of common form that solicitors when taking instructions for the purchase of the matrimonial home should make specific inquires of the Spenaes Teo] tel nesions ase benedict [ovaetstib (cot p. 4420). ‘The following cases are referred to in the judgment: Balfour v. Balfour [1919] 2K.B: $71, CA. © Bedson v, Bedson [1965] 2 Q.B. 666; (1965] 3 W.LR.,89]; [1965] 3-All ER. 307, C.A. Davis v. Vale (1971] 1 W.L.R. 1022; [1971] 2 AILER. 1021, C.A. Falconer v, Falconer [1970] 1 W.LR. 1333; [1970] 3 AIL ER. 449, CA. Gissing.v. Gissing [1969] 2 Ch. 85; [1969] 2 W.LR. 525; {1969] 1 All ER. 1043, C.As [1971] AC. 886; [1970] 3 W.LR. 255; [1970] 2 All ER, 780, H.LAE.). Grey v. Inland Revenue Commissioners [1960] A.C. 1; [1959] 3 W.LR. 759; [1959] 3 AIL E.R. 603, H.L.(E.). Hargrave V. Newton (formerly Hargrave) (1971) 1 W.LR. 16113, [1971] 3 ‘AILER. 866, CA. Heseltine v. Heseltine {1971] 1 W.LR. 342; [1971] 1 AIL E.R. 952, CA. Latimer v. Latimer, December 1, 1970, C.A.; Bar Library Transcript No. 4674. Oughtred v. Inland. Revenue Commissioners [1960] A.C. 206; [1959] 3 WLR, 898; [1959] 3 All ER. 623, H.L(E)). Outram v. Hyde (1875) 24 WR. 268. Pettitt v. Peititt [1970] A.C. 777, [1969] 2 W.LR. 966; [1969] 2 All ER, 385, HL). Pitt v. Pitt (1823) Turn. & R. 180. Rhodesia Goldfields Ltd., In re.[1910] 1 Ch. 239, Shephard v. Cartwright [1955] A.C. 431; [1954] 3 W.LR, 967; [1954] 3 AER. 649, H.L.(E). Shirlaw v. Southern Foundries (1926) Ltd. (1939] 2 K.B. 206; [1939] 2 All ER. 113, CA. Sims, In re (1946) 2 AI ER. 138. Smith v. Baker (1970] 1 W.LR. 1160; [1970] 2:All ER. 826, CA. Ulrich v. Ulrich and Felton [1968] 1 W.LR. 180; [1968] 1 All E.R. 67, CA. The following additional cases which Were supplied by counsel were cited in argument: Brett v. Brett [1969] 1 W.LR. 487; [1969] 1 All E.R. 1007, C.A. Chapman v. Chapman [1969] 1 W.L.R. 1367; [1969] 3 All E.R. 476, C.A, J.v. J. [1955] P. 215; [1955] 3 WLR. 72; [1955] 2 All ER. 617, CA.The Weekly, Law Reports; April 7,:1972 427 1LWLR. Cowcher v. Cowcher (Eam.D,) SumMoys The wife applied by summons under section 17 of the Married Women’s Property Act 1882 for a declaration that she was entitled to a share in the proceeds of sale of the former matrimonial home Appletrees, Woodside Road, Cobham, Surrey. She also claimed £1,207, the discounted value of the accrued profits of an endowment policy taken out. by the husband. The policy on the life of the husband was written under the Married Women's Property Act 1882 for the benefit of the wife. The question as to the wife’s interest in Appletrees and its proceeds of sale was referred by the registrar to a judge by order dated July 21, 1971. The sumnions was heard in chambers and adjourned into open court for judgment. The facts are stated in the judgment of Bagnall J. Anthony Hollis Q.C. and Andrew Phelan for the wife. Joseph Jackson Q.C. and James Townend for the husband. Cur. adv. vult. December 21. BaGNaLt J. read the following judgment. The parties in this case were married on March 23, 1953. The husband was then 30, the wife 21. They have four children: two boys now aged 17 and nearly 12 and two girls now aged nearly 14 and nearly 10. The wife presented a petition for divorce on November 21, 1969, whereby (after amendment) she alleged cruelty and adultery. ‘The husband denied both allegations and cross-petitioned on the ground of adultery. On May 14, 1971, each was granted a decree nisi on the ground of adultery; the allegation of cruelty was not pursued. The marriage was dissolved by decree absolute on August 16, 1971. . During the marriage there were frequent if not ‘continuous financial difficulties. Until 1956 the husband was a director of, and employed by; a comipany which went into liquidation, leaving him with substantial liabilities. For a time he was unemployed but then obtained employment at a modest salary of under £1,500 per annum. In 1962 he went into business on his ‘own account as a management consultant under the firm name Paul Cowcher Associates. He says that in six months in 1962 his earnings were £4,000 and that for some years the venture brought in £3,000 per annum. In 1967 the husband’s business failed. Since then he has had further employment but his earnings have not been substantial. The wife worked until’ 1954 and again from 1956 until her second child was born in January 1958. She earned about £300. I am satisfied that until 1962 her financial contributions to the household were small, Until 1962 the parties lived in tented accommodation and, no doubt, while she was working the wife must be treated as having made some contri- bution towards the rent. In 1960 the wife's father died and she became entitled to a legacy out of his estate. They decided to look for a house and in July 1962 found Appletrees, Woodside Road, ‘Cobham, Surrey, a sub- stantial property with six bedrooms, three reception rooms, two bathrooms and the tisual.offices and also some two acres of land. The purchasé price was £1,000. . On July 13, 1962, the wife received £4,000 on account of her legacy and on October 26, 1962, she received the balance of £1,191—d total of £5,191. Between July. and November 1962: the’ wife paid £3,063 to or on behalf of Paul Cowcher” Associates ‘and ‘£1,306 to the husband, a ‘total of £4,366. During that period: and subsequently she also made contributions to the‘The Weekly Law Reports, April 7, 1972 428 Bagnall J. Cowcher v. Cowcher (Fam.D,) (i972) household expenses. On September 18, 1962, the husband paid £1,000 as a deposit on Appletrees. They went into occupation in December 1962, and the purchase was completed on February 1, 1963, when the house was conveyed to the husband alone. The balance of the purchase price was paid as to £3,000 from a loan upon overdraft from his bankers guaranteed bya friend, a Mr. Carter, as to £1,000 and by the wife’s brother as to £2,000, and the remaining £8,000 was borrowed by the husband from London and Manchester Assurance Co, Ltd. secured on a legal mortgage of the house and a 25-year endowment policy on the life of the husband for a sum of £8,000 with profits. The rate of interest charged on the mortgage was 64 per cent., that is £520 gross per annum and the annual premium on the policy was £358. The interest was an allowable charge on the husband’s income (which for this purpose would include the wife's income if any) for income tax purposes and the husband obtained some income tax allow- ance on the premiums. ‘The husband did not effect the policy wholly for his own benefit. Tt was written under the Married Women’s Property Act 1882 for the benefit of the wife, described by name, subject, of course, to the charge for £8,000. In so far as the policy moneys on maturity were used to pay off the mortgage (as no doubt was the husband’s intention) they would accrue for his benefit; any balance representing the profit element would be held on trust for the wife absolutely and indefeasibly. I am told that the present surrender value of the policy is £2,882 and that the discounted value of the accrued profits is £1,207. T understand the value of Appletrees as a dwelling house is about £18,000, but offers have been received for its purchase conditional on plan- ning permission being obtained to enable the site to be included in a larger scheme of development. One of the offers was for £50,000, another for £42,000. ‘The wife is living in the house with the children and wishes to remain there. At the start of the hearing before me Mr. Jackson, for the husband, conceded and I think rightly conceded, that the wife should be treated as having contributed to the purchase price of the house the whole of the £4,000 paid in cash at the time of the purchase. However, he reserves the right, as T think he is entitled to do, to rely on details of the actual processes of pay ment in dealing with any inferences which have to be drawn from the con- duct of the parties. He submits that the husband must be treated as having contributed the whole of the remaining £8,000. The questions relating to property and finance which by order dated July 21, 1971, have been referred to me and which I have to decide are as follows: 1. Under section 17 of the Married Women’s Property Act 1882 what, if any, interest in Appletrees and its proceeds of sale is vested in the wife? A similar question relating to other property was also referred to me but has been disposed of by agreement. 2. Under sections 2, 3 and 4 of the Matrimonial Proceedings and Pro- perty Act 1970 what provision by way of transfer or settlement of property, or variation of settlement, or by way of periodical payments, maintenance or secured provision (or by any of those ways) shall be made for the wife and the children of the family? Under question 1, each party originally claimed to be entitled to the whole beneficial interest; before me those extreme positions were abandoned and the wife claims to be entitled to an undivided half share in the proceeds of sale of Appletrees; the husband contends that she is entitled only to an‘The Weekly Law Reports, April 7, 1972 429 1 WLR. Cowcher v. Cowcher (Fam.D,) Bagnall J. undivided one-third share therein. It is plain, and indeed common ground, that I must decide this question before I can address my mind to the questions of discretion which arise under the Matrimonial Proceedings and Property Act 1970. During the course of a very full and helpful argument from counsel on the question under section 17, I was referred to three groups of authorities; first, the decisions of the House of Lords in Pettitt v. Pettitt [1970] A.C. 777 and Gissing v. Gissing [1971] A.C. 886; secondly, four cases decided by the Court of Appeal before the opinions in Gissing v. Gissing were delivered: and thirdly, decisions of the Court of Appeal after those opinions had been delivered. ‘I am of opinion that every aspect of the problem before me is within the ambit of the ratio decidendi of Pettitt v. Pettitt and Gissing Vv. Gissing, and I do not think it necessary to refer to any, except two, of the earlier cases. However, in relation to some of the later decisions of the Court of Appeal I have found difficulty. I think that the right course for me to adopt is to consider the problem on principle in the light of the opinions expressed in the House of Lords and only thereafter to advert to subsequent decisions in the Court of Appeal. In my judgment, the following propositions are established beyond doubt by the House of Lords in the two cases I have mentioned. 1. Under section 17 the court simply decides existing rights of property: the court has no power, discretionary or otherwise, to confer or vary any such rights, This was the unanimous decision in Pettitt v. Pettitt [1970] AC. 777. 2. If, under section 17, a person claims an interest in property other than that of an absolute legal and beneficial owner, the claim must be determined in accordance with equitable principles relating to trusts. This was fundamental to the majority opinions in Pettitt v. Pettitt and was asserted in all the opinions in Gissing v. Gissing [1971] A.C, 886. Ladd that the relevant principles have been settled for well over 150 years and (apart from some observations on the presumption of advancement which is not here material) none of their Lordships in either case indicated that he was in any way adding to or detracting from the principles so settled. 3. The same principles apply if the dispute is between spouses or former spouses as apply to any other dispute where equitable ownership is, in question: see Pettit v. Pettit [1970] A.C. 777, per Lord Mortis of Borth-y-Gest at :p. 803, per Lord Upjohn at p. 813, and per Lord Diplock at p. 821; and Gissing v. Gissing [1971] A.C. 886, per Viscount Dithorne at p.899. The contary proposition, which would have been crucial to the issue in Gissing v. Gissing was not asserted by any of their Lordships in that case. In my judgment, Ulrich v. Ulrich and Felton [1968] 1 W.LR. 180, in so far as it proceeded on the footing that the beneficial interests would differ according to whether the parties did or did not marry, can no longer be regarded as authoritative, 4, The expression “family assets,” though in some contexts convenient, has no legal meaning and its use affords no assistance in determining pro- perty rights: see Pettitt v. Pettitt [1970] A.C. 777, per Lord Hodson at pp. 809, 810, and per Lord Upjohn at p. 817; and Gissing v. Gissing [1971] A.C. 886, per Viscount Dilhome at p. 899, and per Lord Diplock at p. 904. Again the contrary proposition was not asserted by any of their Lordships in Gissing v. Gissing. 5. Rights of property are not to be determined according to what is reasonable and fair or just in all the circumstances; in particular those rights do not alter upon the break-up of a marriage. ‘This proposition wasTha Weckly’Law Reports, April 7, 1972 430 Bagnall J. Cowcher v. Cowcher (Fam.D.) tu972) fundamental to the decisions in both cases but was also expressly asserted : see Peititt v. Pettitt [1970] A.C. 777, per Lord Reid at p. 793, per Lord Mortis of Borth-y-Gest at pp. 801, 803, 805, per Lord Hodson at p. 809, and per Lord Diplock at p. 825. In any individual case the application of these propositions may produce a result which appears unfair. So be it; in my view, that is not an injustice. Tam convinced that in determining rights, particularly property rights, the only justice that can be attained by mortals, who are fallible and are not omniscient, is justice according to law; the justice which flows from the application of sure and settled principles to proved or admitted facts. So in the field of equity the length of the Chancellor's foot has been measured or is capable of measurement. This does not mean that equity is past childbearing; simply that its progeny must be legitimate—by precedent out of principle. It is well that this should be so; otherwise, no lawyer could safely advise on his client’s title and every quarrel would lead to a law suit. Trust principles are relevant here at three stages; the formation of the trust, its continuance and its winding up, including the taking of equitable accounts on a sale of the property. The principles relating to formation of the trust are stated in substantially the same terms in all the tecognised text books, Ihave extracted them (though not verbatim) from Maitland’s Equity, 2nd ed. (1936), and Snell's Principles of Equity, 26th ed. (1966), So far as here material and with the relevant statutory provisions they are: 1. There can be no trust unless the nature and quantum of the several beneficial interests are certain at the inception, and during the whole life, of the trust. 2. The trust may be express or implied. 3. Formal words are not required to create an express trust; any words evincing a clear intention to create a trust will suffice and the beneficial interests are determined with certainty as a matter of construction of the words used. As this case is concerned with absolute shares in the property and possibly with equality it is convenient to add some further observations. A trust for A and B without further definition creates an equitable joint interest. This is not, I think, an application of the maxim “equality is equity” but rather of the maxim “ equity follows the law.” A conveyance at law to two or more, without words of severance, creates a joint tenancy at law, Indeed, one of the principal illustrations of the maxim “equality is equity” is equity's dislike of a joint tenancy, which involves the chance of survivorship rather than the true equality of moieties, and the consequent ease with which an equitable joint tenancy can be severed. As between spouses there was, at one time, an unseverable joint tenancy—tenanicy by entireties. The Married Women’s Property Act 1882 precluded’ the creation of such tenancies; and by Part VI of Schedule 1 to the Law of Property Act 1925 all existing tenancies by entireties were converted into joint tenancies, severable (if equitable) under section 36 (2) of that Act: see per Russell L.J. in Bedson v. Bedson [1965] 2 Q.B. 666, 689, 690. Their basis was the outmoded legal concept of husband and wife as one person. I think that their resuscitation would not now be sociologically acceptable ‘and would in arly event require legislation, Lastly, a joint interest in equal shares is a contradiction in terms; the words of severance create a tenancy in common; and there is, I think, no such interest known in Taw or equity as a joint tenancy in unequal shares. 4, By section 53 (1) (b) of the Law of Property Act 1925 an express «trust miist be manifested by and proved by writing signed by the creator of’ the trust. Notwithstanding this’ provision an express trust may beThe Weekly Law Reports,-Apiil 7,-1972 431 1 WLR. Cowcher v. Cowher (Fam.D,) Bagnall J. created. by an agfeement of which equity will grant specific performance, that is an agreement under seal or for consideration, including marriage consideration. 5. Implied trusts may be resulting or constructive trusts. Strictly, constructive trusts arise where one who is already a trustee or otherwise clothed with a fiduciary. character seeks to retain an advantage from his trust; but the expression is often used interchangeably with resulting trust. 6. A resulting trust arises where a person acquires a legal estate but has not provided the consideration or the whole of the consideration for its acquisition, unless a contrary intention is proved. This is the crucial principle in the present case.and I must, I think, add some elaboration. Thus, if land is conveyed to A and the purchase money is provided by_A as to two-thirds and B as to one-third, there will be a resulting trust for A and B in those proportions unless a contrary intention is proved so as to rebut the presumption of resulting trust. ‘The relevant contrary intention is that of B to confer bounty on A. If the intention of the parties is to create a trust in equal shares or as to a quarter for B and three-quarters for A or any shares other than those in which the purchase price is provided, the trust can only be an express trust; for the beneficial interests neither coincide with the legal estate nor “result” in equity from the provision of the purchase money. Such a trust would, therefore, require to be evidenced by writing under section 53 (1) (6) or to arise from an enforceable agreement under seal or supported by consideration. I should add my view that if the whole purchase price is provided by A a trust giving an interest to B can also only be’ an express trust there being nothing to bring the doctrine of resulting trust into operation. However, I think that there is another stage of the transaction at whiich a common agreement or intention can be relevant; this again can best be illustrated by examples. Suppose a conveyance to A for £24,000 with A admittedly providing £8,000 out of his own free available moneys. The remaining £16,000 may be provided by B in a number of ways: (i) out of his own free available moneys; (ii) by loan from a third party: (iii) by Joan from A; and (iv) by a loan secured by a mortgage on the freehold of the property. Cases (i) and (ii) are indistinguishable and will give B, if no contrary intention, a two-thirds interest under a resulting trust, leaving A with one-third. In cases (iii) and (iv) A is involved because he either ends the money or it is raised on property in which he has an interest. In my judgment, in such a case prima facie B will also have a, two-thirds interest because he or his obligation to repay a loan has been the source of £16,000 of the purchase money. But suppose that at the time A says that as between himself and B he, A, will be responsible for half of the mortgage repayments, a different result ensues. Though as between A and B and the vendor A has’ provided £8,000 and B £16,000, as between A and B themselves A has provided £8,000 and made himself liable for the repay- ment of half the £16,000 mortgage namely a further £8,000, a total of £16,000; the resulting trust will therefore be as to two-thirds for A and one-third for B—the reverse of the former situation, It is significant to observe, particularly when -one comes to consider’ the husband and wife cases, that A’s agreement to share equally in the mortgage repayments has not produced overall equality, but has given A a larger share than B; over- all equality would be produced if either A agreed to be responsible for onié- third of the morigage repayments, £4,000, or A agreed to pay half those repayments and also to treat B as having provided half of A’s contributionThe Weekly Law Reports, April 7, 1972 432 Bagnall J. Cowcher v. Cowcher (FamD) {1972 of £8,000—in effect a gift of £4,000 from A to B. A similar equality would be produced if the 8,000, though nominally paid by A, in fact came from a common fund to which A and B were jointly entitled and, though B nomin- ally raised the £16,000 on mortgage, A and B agreed as between themselves to be equally liable for this repayment. If my analysis has been correct, there are thus two types of agreement, or common intention which may affect A’s and B's respective equitable interests: (1) an agreement that, irrespective of the actual payments to the vendor and the legal obligations to an outside mortgagee, as between them- selves A and B shall be treated as providing the money (including being liable for mortgage repayments) in, say, equal shares; (2) an agreement that irrespective of the shares in which, as between themselves, the money has been provided, the property shall be held on an express trust for A and B in, say, equal shares. The first type of agreement or common intention could, in my judgment, be inferred from conduct antecedent, contempo- raneous or subsequent, for it would be part of the arrangement which gave rise to the resulting trust and consistent with it. On the other hand, in my opinion, it would be extremely difficult to infer the second type of agreement from any conduct, because it would involve relying on conduct to substitute for the resulting trust that would otherwise have been implied also from conduct, a contractual express trust inconsistent with that resulting trust. So much for the formation of the trust, As to its continuance there can be no doubt that the trust, and the equitable interests arising under it, cannot be changed except with the consent of all interested parties, and that such a change must involve a disposition of all or part of an equitable interest by one party to another: see Grey v. Inland Revenue Com- missioners (1960] A.C, 1. By section 53 (1) (©) of the Law of Property Act 1925 such a disposition must be in writing; and this requirement applies to a disposition of an equitable interest arising under a resulting trust: see Oughtred v. Inland Reverue Commissioners [1960] A.C. 206. In spite of this a parole agreement for valuable consideration to vary the trusts, of which equity would grant specific performance, would be as valid as an assignment in writing; for it would operate as an agreement for sale of an equitable interest upon which the vendor would become a trustee for the purchaser subject only to the payment of the consideration. In my opinion, such an agreement, having terms of sufficient certainty. could be implied from conduct only in the most exceptional circumstances. In particular the mere payment by one beneficial owner of a mortgage instal- ment properly payable by the other could not alter the beneficial interests or, in my view, imply an agreement to alter those interests. Lastly, I turn to the winding up of the trust which, I think, again involves well-settled principles. First is the principle which “is of general application that where . . . a fund is being distributed, a party cannot take anything out of the fund until he has made good what he owes to the fund: ” see In re Rhodesia Goldfields Lid, (1910] 1 Ch. 239, per Swinfen Eady J. at p. 247; and secondly, that he who discharges another’s secured obligation, wholly or in part, is entitled to be repaid out of the security the amount of the sum or sums paid by him: see Pitt v. Pitt (1823) Tum. & R. 180 and Outram v. Hyde (1875) 24 W.R. 268. Again an example will illustrate the point. Suppose land be conveyed to A for £24,000 B providing in cash £8,000 and A raising on mortgage of the property the remaining £16,000; suppose A has paid off £5,000 of the mortgage and B (though under no obligation) has paid off a further £2,000 Jeaving £9,000 outstanding; finally, suppose the property to be sold for‘The Weekly Law Reports, April 7, 1972 433 1 WLR. Cowcher v. Cowcher (Fam.D) Bagnall J. £60,000, The shares under the resulting trust are one-third to B and two- thirds to A; but A must account for the oustanding mortgage of £9,000 and B is entitled to be reimbursed the £2,000 paid by him in part discharge of the mortgage. Thus out of £60,000 realised £9,000 goes to the mortgagee, B takes £22,000, his one-third share of £20,000 together with £2,000 paid off the mortgage, and A takes £29,000, that is his two-thirds share of £40,000 less £9,000 outstanding on the mortgage and £2,000 repayable to B. This must be the result even if A and B are husband and wife if my third initial proposition, that the same principles apply between husband and wife as between strangers, is sound: see also In re Sims [1946] 2 AU ER. 138. If so, I think that Ulrich v. Ulrich and Felton (1968) 1 W.LR. 180 which, as between husband and wife, treated the equity of redemption as the divisible trust property is no longer authoritative. It may well be, however, that as between husband and wife there will be a clear contrary intention that mortgage instalments, by whomsoever paid, are to be treated as discharging the husband’s obliga- tion without giving any right of subrogation to the wife. I must now return to Pettitt v. Pettitt (1970) A.C. 777 and Gissing v. Gissing [1971] A.C. 886. In each case the legal estate in the matrimonial home was vested in one only of the spouses; in each case the other spouse had made no direct contribution to the purchase price but claimed to be entitled to an equitable interest under an implied or resulting trust. In Pettict v. Pettitt the spouse so claiming had effected improvements to the property but the House of Lords considered the general principles relating to ascertaining the beneficial interests of husband and wife in the matrimonial home. In Gissing v. Gissing the claiming spouse was said to have made a notional or indirect contribution to the purchase price of the matrimonial home. In neither case was the claim held to have been substantiated. In Pettitt v. Pettitt [1970] A.C. 777 the minority view was that the function of the court under section 17 was to decide what the spouses would, as a reasonable husband and wife, have agreed as to their respective bene- ficial interest had they directed their minds to the problem: see per Lord Reid [1970] A.C. 777, 795 and per Lord Diplock, at pp. 823, 825. In my judgment, the majority opinion may be summarised as that the beneficial interests must be those which arise under a resulting trust based on the proportions in which the purchase moneys were actually provided or under an agreement (or common intention) expressed or to be inferred from all the relevant facts: see per Lord Morris of Borth-y-Gest [1970] A.C. 777, 804, 805; per Lord Hodson at pp. 807, 810; and per Lord Upjohn at p. 818. T anticipate by adding that this seems to me to have been Lord Diplock’s analysis in Gissing v. Gissing [1971] A.C, 886, 903 of the minority and majority opinions respectively in Pettitt v. Pettitt [1970] A.C. 777. In analysing the ratio decidendi of Gissing v, Gissing, a difficulty arises at the outset. Lord Reid [1971] A.C. 886, 895, 896.did not think that he was precluded by the decision in Pettitt v. Pettitt from repeating the views that he there expressed; Lord Diplock [1971] A.C. 886, 904 said that the proposition formulated in the minority opinions in Pettitt v. Pettitt was not the law. But that is a negative approach. I am of opinion that the law on this subject established in Gissing v. Gissing [1971] A.C. 886 is that the beneficial interest in the property must either (1) coincide with the legal estate or (2) arise under a resulting trust from the actual pro- vision of the purchase price or (3) arise from a common agreement or common intention (these expressions are I think used interchangeably and‘The’ Weekly Law -Reports,-April 7, 1972 434 Bagnall J. Cowcher v. Cowcher (Fam.D.) (i972) I will use the word “ consensus” as synonymous with both) either express or to be inferred from the facts. The first two of these possibilities exist because the question has to be determined under the general law of trusts. As to the third I cite the relevant extracts from their Lordship's speeches. Lord Morris of Borth-y-Gest said, at p. 898: “When the full facts are discovered the court must say what is their effect in law. The court does not decide how the parties might have ordered their affairs: it only finds out how they did. The court cannot devise arrangements which the parties never made. The court cannot ascribé intentions which the parties in fact never had.” Viscount Dilhorne said, at pp. 900 and 901: “ Where there was a common intention at the time of the acquisition of the house that the beneficial interest in it should be shared, it would be a breach of faith by the spouse in whose name the legal estate was vested to fail to give effect to that intention and the other spouse will be held entitled to a share in the beneficial interest. “The difficulty where the dispute is between former spouses arises with regard to proof of the existence of any such common intention. It may be, as in this case, that the claim to a share in the beneficial interest is not made until years after the acquisition of the property. It is most likely that there will be no documentary evidence pointing to the existence of any such intention. “In a great many cases, perhaps in the vast majority, no consider- ation will have been given by the parties to the marriage to the que: of beneficial ownership of the matrimonial home at the time that it is being acquired. If, on the evidence, that appears to have been the case, then a claim based upon the existence of such an intention at the time must fail... “T appreciate that there may be very great difficulty in establish- ing such an intention where the dispute is between former spouses but that does not alter the question to be decided. In every case it has to be established that the circumstances are such that there is a resulting, implied or constructive trust in favour of the claimant to a beneficial interest: or a share in it. In the case of former spouses that will ordinarily depend on whether it can be inferred from the evidence that there was such a common intention.” Lord Pearson said, at p. 902: “If the respondent's claim is to be valid, I think it must be on the basis that by virtue of contributions made by her towards the purchase of the house there was and is a resulting trust in her favour. If she did make contributions of substantial amount towards the purchase of the house, there would prima facie be a resulting trust in her favour. That would be the presumption as to the intention of the parties at the time or times when she made and he accepted the contributions. The presumption is a rebuttable presumption: it can be rebutted by evidence showing some other intention. The question as to what was the intention is a question of fact to be decided by the jury if there is one, of. if not, by: the judge acting as-a jury . . . an intention can be imputed: it can be inferred from the evidence of their conduct and the surrounding circumstances.” tt is) T think, cleat fromf the rest 6f Lord Pearson’s opinion that he was‘The Wetkly’ Law ‘Repofts,’ April 7, 1973 ia3s 1 WLR. Coweher vs Coweher (Fim.D') Bagnall J. not there intending to exclude subsequent circumstances from the facts oh which an inference can be based. Lord Diplock said, at pp. 906 and 909: “ But parties to a transaction. in connection with the acquisition of land may well have. formed a common intention that the beneficial terest in the land shall. be vested.in them jointly without having used express words to communicate this intention to one another;, or their recollections of the words used may be imperfect or conflicting by the time any dispute arises. In such a case—a common one where the parties are spouses whose marriage has broken down—it may be possible to infer their common intention from their conduct, “As in so many branches of English law in which legal rights and obligations depend upon the intentions of-the parties to-a transaction, the relevant intention of each party is the intention which was reason- ably understood by the other party to be manifested by that. party's words or conduct notwithstanding that he did not consciously for- mulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party. On, the other hand, he is not bound by any inference which the other party draws as to his intention unless that inference is one which can reason- ably be drawn from his words or conduct. It-is in this sense that in the branch of English law relating to constructive, implied or. resulting trusts effect is given to the inferences as to the intentions of parties to a transaction which a reasonable man would draw from their words or conduct and not to any subjective intention.or absence of intention which was not made manifest at the time of the transaction itself. It is for the court to determine what those inferences are... The conduct of the spouses in relation to, the payment of the mortgage instalments may be no less relevant to their common, intention as to the beneficial interests in a matrimonial home acquired in this way their conduct in relation to the payment of the,cash deposit. ... . “ Difficult as they are to solve, however, these problems as to the amount of the share of a spouse in the beneficial interest in a matri- monial home where the legal estate is vested solely in the other spouse, only arise in cases where the court is satisfied by the words or conduct of the parties that it was their common intention that the beneficial interest was not to belong solely to the spouse in whom the legal estate was vested but was to be shared between them in some pro- portion or other.” The same proposition is expressed in the disenting judgment of Edmund Davies LJ. in the Court of Appeal [1969] 2 Ch, 85, 96, which was upheld in the House of Lords: “In the present case, there being no express agreement relating to the matrimonial home, the task is that of inferring what the common intention of the parties would have been expressed to be had they reduced it to words before the matrimonial difficulties arose.”” In cases (which will probably be infrequent) where. there is -express agreement no difficulties are likely to arise; the outcome will depend on the true construction of the agreement, on whether section 53 (1) (6) of the Law ‘of Property Act 1925 applies and if so whether its provisions are satisfied and, pérhaps, on ivhether the agreement is one which equity would specifically enforce so-as to obviate the necessity for compliance: with that section. If there is an express.agreement, even if it-is ineffective by réason‘The Weekly Law Reports, April 7, 1972 436 Bagnall J. Cowcher v. Cowcher (Fam.D.) li972] of section 53 (1) (6) or otherwise to achieve the intention of the parties, it must, I think, inevitably preclude any implied consensus. The crucial question, it seems to me, is which of the two types of implied or inferred consensus to which I have already referred is contem- plated in the ratio decidendi of Gissing v. Gissing [1971] A.C. 886. Is it consensus as to the proportions in which the parties are to be taken as having provided the purchase moneys (which I will call “money con- sensus”) thus defining the beneficial interests arising under a resulting trust or consensus as to what the beneficial interests of the spouses are to be (which I will call “ interest consensus”) irrespective of the source or sources of the purchase money—interests inconsistent with and displacing the resulting trust (if any) that would otherwise have arisen? In my judg- ment, the opinions in Gissing v. Gissing [1971] A.C. 886 contemplated money consensus and not interest consensus. Ireach that conclusion for the following reasons: 1, Interest consensus postulates an express trust, whereas the basis of all the opinions in the House of Lords is resulting trust. 2. On that footing, if an express trust is to be.valid there must be compliance with section 53 (1) (b) of the Law of Property Act 1925 or an enforceable agreement. Apart from the difficulties inherent in such cases as Balfour v. Balfour [1919] 2 KB. 571, it seems clear from references in the opinions to common intention and other indications that the House of Lords was not contemplating a consensus that was enforceable as an executory contract. 3. If the consensus is treated as rebutting the presumption of a resulting trust, subsequent acts and declarations would be admissible as evidence only against the party doing or making them: see Shephard v. Cartwright [1955] A.C. 431. It is explicit in the opinions in the House of Lords that subsequent acts may found an inference in favour of the party performing them. 4, All the examples given by their Lordships in Gissing v. Gissing [1971] A.C. 886 were of payments of money (directly or indirectly) or the discharge of obligations which would found inferences as to the shares in which the parties were to be treated as having contributed to the purchase consideration, that is, inferences of money consensus. 5. The maxim “equality is equity” (for which no great enthusiasm was shown) was treated as applicable (if at all) where it was not possible to quantify the contribution intended to have been made by one or other spouse except by saying that it was substantial. ‘Accordingly, in my judgment, the steps to be taken in solving the sort of questions with which I'am now concemed are as follows. First, to determine the actual source or sources of the purchase money, that is from whose bank account or savings account or other resources was it provided, treating the party who assumed liability to a mortgagee as the source of the money so raised. Secondly, to determine whether there was any express agreement and if so whether it complied with section 53 (1) (b) of the Law of Property Act 1925 or was enforceable so as to obviate such compliance. Thirdly, from the whole of the evidence including acts of the parties before, at the time of and after the purchase, to determine whether consensus as to the proportions in which they were to be treated as providing the purchase money can be inferred. The test must, I think, be similar to that pro- pounded by Mackinnon LJ. in Shirlaw v. Southern Foundries (1926) Ltd. (1939] 2 K.B. 206, 227 with this difference that whereas in commercial dealings the general expectation is that the parties will record all the terms‘The Weekly Law Reports, April 7, 1972 437 1 WLR. Cowcher v. Cowcher (Fam.D.) Bagnall J. of their bargain, in matrimonial matters it is unlikely that the spouses will record all, or perhaps any, of such terms, But in each case it must be possible to infer that to the officious bystander’s question, “Ought you not to record that you are intending to pay for this house in equal (or some other) shares?” their common answer would be, “No; that goes without saying,” and to infer, moreover, that each had the same intention as to what it was that went without saying. Fourthly, to determine whether the initial beneficial interests have been altered by a subsequent agreement (express or implied) or by the creation of a fresh express trust. Lastly, if there is a sale of the property, to distribute the proceeds in accordance with the ascertained beneficial interests applying, where applicable, equit- able principles of accounting. In the normal case the beneficial interest will depend on the conclusion reached under the first, third and fourth of these headings, and particularly whether money consensus can be inferred under the third heading. In a simple case where a couple consistently adopted a system of all purchases out of a common fund the inference may present no difficulty. Otherwise, for my part, applying the reasoning of the House of Lords and the decision in Gissing v. Gissing [1971] A.C. 886, I think that only in rare cases will it be possible to infer that consensus with sufficient certainty, even if, as a last resort, the maxim “equality is equity” is invoked. For that maxim can only assist if consensus that both spouses are to be treated as making substantial contributions is established but the proportions cannot be precisely quantified. The maxim cannot, I think, found an inference of such consensus if that inference cannot otherwise be drawn; nor, as Lord Pearson said in Gissing v. Gissing [1971] A.C. 886, 903, can it displace a consensus that can be quantified. I find further support for this view in the Matrimonial Proceedings and Property Act 1970, ‘That Act by section 37 provided a statutory solution to the type of problem that arose in Pettitt v, Pettitt [1970] A.C. 777, but did not deal at all with the problem of ascertaining property rights which arose in Gissing v. Gissing [1971] A.C. 886 and which arises in the present case. On the other hand, by sections 2 and 4 the Act gave to the court a discretionary power to deal in almost every conceivable way with the assets and property of the parties. Moreover, it is significant that under section 5 (1) (f) the court in exercising that jurisdiction must have regard to “the contributions made by each of the parties to the welfare of the family including any contribution made by looking after the home or cating for the family.” So the principles established in Gissing v. Gissing, of course, remain applicable in a proper case. But I cannot escape the thought that Parliament evinced an intention that in the vast majority of cases justice would be done by exercising the statutory discretion in relation to all the capital and income resources of the parties rather than by isolating one asset—the matrimonial home—and by inferrring a dubious consensus from equivocal facts fitting that particular asset uncomfortably into the framework of resulting trust. T must now consider the more recent cases in the Court of Appeal to which counsel have referred me, ‘There are six. In Smith v. Baker [1970] 1 W.LR. 1160 Widgery LJ. and Karminski LJ. expressly based their conclusions on inferred consensus on the common answer that would have been given to the officious bystander; and I think that that was the implicit basis of Lord Denning M.R.’s judgment. The decision thus anticipated the ratio decidendi of Gissing v. Gissing [1971] ACC. 886 and I think supports my conclusions.The Weekly Law Reports, April. 7; 1972 438 Bagnall J. Cowcher v. Cowcher (Fam.D)) 972] In Falconer v. Falconer [1970] 1 W.LR. 1333 Lord Denning MR. said, at p. 1336: “It [the House of Lords] stated the principles‘on which a matri- monial home, which stands in the name of husband or wife alone, is nevertheless held to belong to them both jointly (in equal or unequal shares). It is done, not so much by virtue of an agreement, express or implied, but rather by virtue of a trust which is imposed by law. . The law imputes to husband and wife an intention to create a trust, the one for the other. It does so by way of an inference from their conduct and the surrounding circumstances, even though the parties themselves made no agreement upon it, This inference of a trust, the one for the other, is readily drawn when each has made a financial contribution to the purchase price or to the mortgage instalments. . . . So long as there is a substantial financial contribution towards the family expenses, it raises the inference of a trust.” In the first paragraph I think that Lord Denning M.R. was contrasting an enforceable agreement with the inferred common intention which was the basis of the decision in Gissing v. Gissing [1971] A.C. 886. This accords with the decision of Megaw LJ. who upheld the decision of the county court judge on the footing that his inference was based on all the evidence. Sir Frederick Sellers agreed with both judgments. So I think that decision supports my conclusions. I do not understand the second paragraph cited from Lord Denning M.R.’s judgment to, mean that substantial contributions will raise the inference of a trust regardless of all other considerations some of which might point to.a contrary inference, because ‘that would be inconsistent with the opinions of the House of Lords that the inference must be based on the whole of the evidence. I think that Lord Denning MLR.’s observation must be read in the light of the facts of that case on the footing that there was no other relevant evidence. In Heseltine v. Heseltine [1971] 1 W.L.R. 342, Lord Denning MR. said, at p. 345: “In the usual way the court imputes a trust under which the husband is to hold it for them both jointly in equal shares. But half-and-half is not an invariable division. If some other division is more fair, the court will adopt it: see Gissing v. Gissing [1971] A.C. 886. In the present case the registrar said that the division should be as to three- quarters to the wife and one-quarter to the husband, That seems to me to be entirely fair.” Karminski L.J. agreed with Lord Denning M.R. and did not deal separately with the matrimonial home. Megaw LJ. upholding the registrar's decision said, at p. 351: “Tam unable to see how the proportion of three-quarters to one- quarter upon which the registrar decided canbe challenged as being unfair or excessive in relation to the husband’s interest therein.” Looked at literally those statements seem to be a reference to the fair aid reasonable test which was rejected by the House of Lords; but reading the judgments as a whole I think that the word “fair” must indicate those proportions in which, as a inatter of inference on the whole of the evidence, both parties intended to contribute to the purchase price. On that footing againi the decision supports my conélusions. In Latimer v. Latimer. (which is unreported (Bar‘Library Transcript‘Tie Weekly Law Reports, Apdll:?, 1972 439 1WLR. Cowcher vy. Cowcher (Fam.D.) Bagnall J. No, 467A) but I was supplied with a transcript of the judgment) the decision must, I think, have proceeded on_a similar basis of inferred common intention notwithstanding Lord Denning M.R.’s reference to what the court orders and Edmund Davies LJ.’s statement that the Court of Appeal’s conclusion “more nearly approximates to justice than the decision of the learned registrar.” In Davis v. Vale (1971] 1 W.LR. 1022, the basis of the decision was also, in my view, inference of consensus as to proportions of contribution. Lord Denning M.R. said, at p. 1027: “What is the proper. trust for the courts to impose or infer? What is the extent of the beneficial interest of each? What is * just in all the circumstances of the case "?”" I think that the Jast question must imply that, that solution is just which accords with the inferred consensus. Edmund Davies LJ. asked the question, at p. 1027, “* whether, in all the circumstances an implied agree- ment should be inferred; and, if so, how it affected the beneficial interest.”” The approach of Stamp L.J. was the same though he expressed reservations as to whether the facts justified the inference that was drawn. The last case, Hargrave v. Newton (formerly Hargrave) [1971] 1 W.L.R. 1611, has caused me the greatest difficulty. ‘The registrar found that there was an adjustment to the wife’s contribution to expenses referable to the acquisition of the house when she went out to work, But she went out to work and attained her highest earnings before the house was acquired; and. the whole of the purchase price was raised on loan. The Court of Appeal up- held the registrar’s decision that each had a half share in the house but not on that ground. It seems that the basis of the decision was the mere fact that the wife made contributions to general expenses. Both Lord Denning M.R. and Megaw L.J. relied on the opinion of Lord Reid in Gissing v. Gissing [1971] A.C. 886 which, so it seems to me, in significant respects did not accord with the other four opinions. The principal reason (though not the only reason) why the wife was able to make the contributions she did make was a.wholly unforeseen and unforeseeable windfall of over £5,000. None of this was used (as it might have been) to repay all or part of the mort- gage loan. I find difficulty in seeing how the windfall could have been a fact raising the inference of a common intention at the time of the purchase. But the wife was to be treated as contributing one half of the purchase price of ‘the house. I am respectfully of the opinion that the decision can only be reconciled with the principles in’ Gissing v. Gissing if the Court of Appeal did draw that inference. In my judgment, those authorities do not compel me to resile from the conclusion of law that I have reached upon a’ consideration of the relevant principles and the decisions in Pettitt v. Pettitt [1970] A.C. 777 and Gissing v. Gissing [1971] A.C. 886. ‘Mr, Jackson submitted that I should approach the question at issue on the footing that the purchase price was actually provided as to £4,000 by the wife and £8,000 by the husband and that their respective equitable interests must be in those proportions unless on the totality of the evidence I can infer a common intention at the time of the purchase that they were to be treated as providing the money in equal shares. On the facts, he sub- mitted that no such common intention could. be’ inferred, Further, he submitied (and Mr. Hollis, for the wife, did not dissént) that there was no agreement express or inipliéd to’ vary the original beneficial interests after the date of purchase. ° Mr. Hollis: submitted that as a. matter of' equitable‘The Weekly Law Reports, April 7, 1972 440 Bagnall J. Cowcher v. Cowcher (Fam.D.) (972) principle if the wife contributed to the purchase of the house, directly or indirectly, then if her contributions (either at the time of the purchase or subsequently) were substantial she is entitled to an equal share unless there was an express agreement to the contrary. Alternatively, on the facts, he submitted that a common intention that the wife was to be treated as having contributed half the purchase price was to be inferred. T have no doubt that on any view of the matter the wife's contribution here was substantial, But for the reasons I have indicated I think that Mr. Hollis’ submission on the law is unsound, and I accept Mr, Jackson’s submission on the principles to be applied. I must, therefore, consider what (if any) common intention is to be inferred on the footing that one- third of the price was actually provided by the wife and two-thirds by the husband and that there was no relevant express agreement. The facts on which Mr, Hollis relied as establishing a common inten- tion for equal contributions are as follows. It was only when the parties knew that the wife had a substantial legacy under her father’s will that they started to look for a house; if there had been no legacy there would have been no house. The husband had no capital. The total amount of the legacy £5,191) substantially exceeded the £4,000 paid in cash. The wife had paid some rent, but admittedly only after she had received her legacy. ‘The wife had received other legacies; £80 in 1962 at about the time of the purchase; £3,150. in 1966; £500 in 1967. Her aunt had paid £1,000 to have central heating installed in the house in 1963 and had given her £438 in 1966 to be applied in paying (as it was applied) an overdue premium on the policy and overdue interest on the mortgage. The wife paid that premium and interest in 1966 and also £517 as premium and interest in 1968. In addition, when the husband paid the first pre- mium and instalment of interest he had had moneys from the wife though not expressly for that purpose. While the parties were married and living together in the matrimonial home the wife made substantial contributions to general living expenses (including school fees). Since July 1962 she had received from outside sources a total of £9,221 (including her father’s legacy) £4,000 of which admittedly went towards the purchase price. The whole of the balance was spent either for family purposes or in supporting the husband's business. Since the parties separated the wife paid £650 as mortgage interest. According to the wife’s evidence, at the time of the purchase she assumed that the house would be put in her name or joint names, and she relies on a letter dated July 2, 1962, from the husband to the vendor containing references to “we” and “us” in relation to the purchase. The whole picture, says Mr. Hollis, is one of a joint venture, and a joint venture means an equal venture. Mr, Jackson relies on the following facts which, he submits, preclude any inference of a common intention to make equal contributions. The parties never had a joint banking account or joint savings or any other pooling of resources. ‘The husband regarded himself as purchasing the house, notwithstanding his receipt of over £4,000 from the wife; he raised an overdraft with guarantees for the purpose. He also referred to himself as the purchaser in contemporary correspondence. Whatever the wife assumed at the time of the purchase, she made no representations on the subject to the husband; in any event her assumption that she was to have an interest would be as consistent with a one-third share as with an equal share. If the intention had been for equal contributions, each would have been equally entitled to the surplus policy moneys. But the husband un- equivocally treated the policy as his own by settling it under the Married‘The Weekly Law Reports, April 7, 1972 441 1 WLR. Cowcher v. Cowcher (Fam.D.) Bagnall 3. Women’s Property Act 1882 in trust for the wife. Indeed in her evidence she referred to it as “his” policy, Although in fact the wife made con- tributions to general expenses and eventually paid some premiums and interest she was able to do so only because of unexpected legacies and gifts, No inferences as to the state of mind of the parties in 1962 can be drawn from what the wife did with such legacies and gifts in 1966, 1967 and 1968, Indeed, in 1962, whatever past experience might have been, and whatever suspicions the wife might have had as to the future based on them, they both thought that the husband was firmly established in a business which would provide for their needs and neither contemplated that in future the wife would go out to work to supplement the family income, or receive money from any source other than the husband, or do anything other than carry out the normal duties of a wife and mother. Since 1962 and while the parties were together the husband received from outside sources over £25,000 all of which was disbursed either on living expenses (including payments of premiums and interest) or on the husband's busi- ness which, though it tumed out unsuccessfully, was in 1962 intended to be the basis of the family’s prosperity. Mr. Hollis’ submissions have cogency and attraction. But, in my judgment, looking at the totality of the evidence and putting the matter at ‘its highest in his favour, the facts are equivocal; and I am wholly unable to draw from them an inference that the parties in 1962 intended to con- tribute equally to the purchase of the house. But I go further. I am of opinion that the settlement of the policy on trust for the wife and the then contemplation of the parties that in future the husband alone was to be the source of the family income are themsclves conclusive against any such inference. I propose, therefore, to declare that Appletrees is held on trust for sale and that the net proceeds of sale are held on trust for the wife and the husband as tenants in common as to one-third thereof for the wife and two-thirds thereof for the husband. The parties are agreed that there should be a sale of the house, and I so order. I will deal in chambers with the question of the terms as to date of completion and otherwise on which the sale should take place and with the wife’s right of occupation in the meantime. I shall also adjourn to chambers the question of provision for the wife and children under the Act of 1970 to be determined after the purchase price for the house has been ascertained. I must, however, deal with the question of equitable accounting, It is common ground, in the light of my conclusion on the facts, that the parties must be regarded as having treated their moneys separately for this purpose. It follows that there must be debited against the husband’s share the whole of the outstanding mortgage and the unpaid interest and premiums that are charged on the house and policy. There must also be debited against his share a sum of £1,500 which he raised on ‘the security of the policy and £1,749 the subject of a charging order on the house as a result of a judgment against the husband for a business liability; also the sum owed to Mr, Carter and the wife’s brother upon their guarantees. The wife must be credited and the husband debited with the sums of £517 and £438 paid by her as premiums and interest and with the £650 that she has paid since the separation for interest. So much is common ground, There is, however, a question as to the policy. It is agreed that it must be surrendered. Mr. Hollis submits that only the surrender moneys attributable to the basic sum of £8,000 should enure for the benefit of the husband and that the discounted profit element should‘The! Weekly ‘Law Reports, April 7, 1972 442 Bagnall J. Cowcher v. Cowcher (Fam.D,) 11972) be held on trust for the wife on the footing that that would have been the result if the policy had matured by effluxion of time or on the husband’s death. Though the submission has some superficial attraction, I cannot accept it. The whole policy is charged with the mortgage debt. Only subject to that charge has the wife any beneficial interest in it. All the premiums were paid with the primary object of repaying that debt. In my opinion, the total surrender moneys must be applied towards payment of that debt in reduction of the debit against the husband’s share. There should be liberty to apply in chambers in event of any dispute in working out this order. I am constrained to add one further observation. ‘The purchase of a matrimonial home cannot be accomplished without professional advice and assistance. In dealing with the purchase solicitors make many common form inquiries dealing with such matters as planning, registration of charges, and so forth. Though it is not for me to dictate such matters, I think that it would be desirable, also as a matter of common form, that they should make specific inquiries of the spouses of their intentions as to beneficial ownership. The just resolution of future disputes would be facilitated; the additional costs would be insignificant; and I cannot think that connubial harmony would be unduly jeopardised. Order accordingly. Solicitors: Geoffrey S. Beccle & Co.; Crane & Hawkins [cuancery Division] * PRACTICE DIRECTION (REVENUE: HEARING DATES) [No. 8 of 1972] Practice—Revenue—Revenue List—Fixing date for hearing 1, Each judge taking a Revenue List in any sittings is in charge of his own list. 2. The Registrar of Revenue Appeals will hold a meeting of clerks to counsel engaged in a sittings’ revenue paper at least 14 days before the Paper is due to start, to enable him to arrange the hearing dates of the cases in the paper. 3. Each clerk will submit at the meeting his counsel’s signed estimate of the length of hearing of the cases in which he is engaged. 4. The Registrar of Revenue Appeals will immediately submit his arrangements to each judge taking a Revenue List for his approval in respect of the cases in his lst. 5, The dates for hearing of the revenue paper in any sittings will be fixed 50 as ‘to allow at least seven clear days between the conclusion of the revenue paper and the end of the sittings. By the direction of the Vice-Chancellor. R.E, Ba . Chief Master March 8, 1972. -