The husband remained in the home after the divorce and paid all mortgage instalments.
Held: An occupation rent was payable.
Stamp LJ said: ‘a beneficiary entitled to an equal share in equity of property of which he is a trustee, and which he himself occupies, is to be charged with at least an occupation rent so that if as here he seeks to charge his co-beneficiary trustee with half the outgoings he should be charged with half the occupation rent . . That will normally produce a fair result and save costs and where, as here, the husband in possession does not submit to be charged with an occupation rent, it must be wrong that he should seek to charge the wife with half the mortgage interest which he has paid while living in the property rent free and resisting a sale of the property.’
and ‘. . in Leake (formerly Bruzzi) v Bruzzi [1974] 1 WLR 1528 this court arrived at a similar conclusion by regarding the mortgage interest paid by the husband while in possession as something equivalent to rent or payment for use and occupation. That will normally produce a fair result and save costs; and where, as here, the husband in possession does not submit to be charged with an occupation rent, it must be wrong that he should seek to charge the wife with half the mortgage interest which he has paid while living in the property rent free.’
Ormrod LJ said: ‘So far as my recollection goes, it has been the normal practice in this class of case to allow the occupying spouse to take credit for repayments of capital but not of interest, because he or she has had the benefit of the use of the house. It was certainly so where the husband was in occupation, although it may not always have been the case where the wife, and particularly the children, were in occupation.’
Stamp, Ormerod LJJ
[1977] 1 WLR 819
Married Women’s Property Act 1882 17
England and Wales
Cited by:
Cited – Byford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
Cited – Re Gorman ChD 1990
The matrimonial home was in the joint names of husband and wife. After the marriage broke down, the husband left the home, and the wife discharged all mortgage payments (both capital and interest). The husband was adjudicated bankrupt. The wife . .
Lists of cited by and citing cases may be incomplete.
Equity, Family
Updated: 10 December 2021; Ref: scu.183862