In the Court of Appeal, Gordon JA took the view that there was "absolutely no factual basis" for the inference that the land was a gift to them both. Relying on the second part of the passage cited in para 3 above from Lloyd's Bank plc v Rosset , therefore, he took the view that the wife could only acquire an interest by way of direct contributions to the mortgage payments. Counsel for the husband had generously agreed that it should be assumed that the whole of the wife's salary after she went back to work in 1995 should be attributed to the mortgage. This, he calculated, would give her 8.31% share in the equity. Gordon JA therefore seems to have disregarded altogether the wife's joint and several liability to repay the loan and the additional security given by her life assurance policy.
It is fair to say that there are passages in the judge's notes of evidence which can be taken either way. They might indicate the sort of unspoken assumptions upon which happily married couples organise their lives or they might indicate something more concrete about their shared intentions as to ownership. Little would be gained by reciting them. The trial judge had the great benefit of seeing and hearing both parties give evidence. It is clear that he found the husband's evidence unsatisfactory in some respects, although he was not specific. It is easy to understand why, as the husband claimed to have no knowledge of matters which clearly ought to have been within his knowledge if his case was correct.
It has been said more than once in the English courts that if a parent gives financial assistance to a newly married couple to acquire their matrimonial home, the usual inference is that it was intended as a gift to both of them rather than to one alone: see McHardy and Sons (A Firm) v Warren [1994] 2 FLR 338, at 340; Midland Bank plc v Cooke [1995] 4 All ER 562 , at 570. It might be doubted whether such an inference could so readily be drawn in other countries where the culture may be different. But this was a Caribbean judge, albeit from a different small Caribbean island, and it is certainly not for us to say that it was an inference which he was not entitled to draw.
Furthermore, it was supported by the behaviour of both parties throughout the marriage until it broke down. Not only did they organise their finances entirely jointly, having only a joint bank account into which everything was paid and from which everything was paid. They also undertook joint liability for the repayment of the mortgage loan and interest. This has always been regarded as a significant factor: see Hyett v Stanley [2003] EWCA Civ 942 , [2004] 1 FLR 394. Yet the Court of Appeal appear to have attached no weight to it at all.
Finally, it must be borne in mind that the husband accepted in the course of his evidence that the wife did have a beneficial interest in the home, although he disputed the amount. The Court of Appeal appears to have attached undue significance to the dictum of Lord Bridge in Lloyd's Bank plc v Rosset , in particular as to what conduct is to be taken into account in quantifying an acknowledged beneficial interest. The law has indeed moved on since then. The parties' whole course of conduct in relation to the property must be taken into account in determining their shared intentions as to its ownership.
For all those reasons, the Board is of the view that the Court of Appeal should not have interfered with the findings of the learned trial judge on the beneficial ownership of the matrimonial home.
In 1985 the husband's aunt also gave him a parcel of land. The wife has never suggested that this was a gift to them both. But in 1991 the land was sold to the local Kentucky Fried Chicken (KFC) franchise for them to build a branch. On sale the husband received 10,000 shares in the company. The shareholders arranged for their dividends to be paid offshore. To that end a joint bank account was opened in the Cayman Islands in the names of both husband and wife into which the dividends were paid until the parties separated. Unusually, drawings from that account required the signature of both husband and wife.
The judge declared that the wife was entitled to one half of the funds in the Cayman Islands bank account. The husband has not appealed against that finding. However, the judge also found that the husband held the shares themselves in trust for husband and wife in equal shares. The wife claimed that the husband intended that the shares should belong to them both. The husband denied any such intention.
The Court of Appeal recorded that the wife's counsel had conceded that the shares belonged to the husband exclusively. However, Gordon JA went on to observe that at no point did the judge find any evidence that the wife had acted to her detriment on the basis that the shares were hers. There was nothing to indicate that the husband had made himself constructive trustee of one half of the shares.
The wife should not now be allowed to resile from the concession made on her behalf in the Court of Appeal. In any event it was almost certainly properly made. The sale of the land was a perfectly ordinary commercial transaction. There was no participation by the wife as there was in the construction of the house. There was no express declaration of trust by the husband. Putting the dividends into an account in joint names cannot be construed as such. Agreeing to the husband's withdrawals from the Cayman Islands bank account cannot be construed as acting to her detriment in reliance on the belief that the shares, as opposed to the bank account, were hers. If the husband did indeed intend that the shares should belong to them both, this was an imperfect gift.
The judge also decided that the furniture bought for the matrimonial home was owned in equal shares. The wife had not had the benefit of it since she left. Hence he ordered that she be given credit for half its value when the house was sold in accordance with his order. The Court of Appeal set aside his order for sale, ordering instead that the husband pay the wife the sum of EC$65,192 to represent her beneficial interest in the home. It must therefore have concluded that she had no interest in the furniture or that such interest as she had was worthless.
The judge's reasoning was that the furniture was bought out of the joint bank account for the benefit of the family as a whole, although the husband had contributed almost all the money to that account. But the husband appears to have accepted that the furniture belonged to them both. Furniture in the matrimonial home is very different from shares, which can readily be transferred into joint names. There is no simple means of delivering domestic furniture from one occupant to another. Buying it out of a joint account and causing it to be delivered to the family home for their joint use and benefit is the most that can usually be expected.
However, the judge proceeded to order an adjustment based upon the wife's estimate of the costs of purchase in 1991. This is unrealistic. It is not suggested that any of the furniture was valuable antiques or art work which might be expected to increase rather than decrease in value. Twelve years later much of it will have been of little value. Some had been disposed of and the wife had declined to take any of it with her. The wife is entitled to something to compensate her for what she has lost, but in the absence of better evidence it should not be more than 20% of the costs of acquisition.
The Board will therefore humbly advise Her Majesty that the appeal should be allowed in respect of the house and the furniture. There should be a declaration that the husband holds the house in trust for them both in equal shares. There should also be an order that the house be sold and the proceeds divided equally, subject to an adjustment in favour of the wife for 20% of the costs of acquiring the furniture. The wife's appeal in relation to the KFC shares should be dismissed. The parties are invited to make written submissions on costs within 21 days. Each has enjoyed a measure of success before the Board but in rather different proportions from the success enjoyed in the Court of Appeal.