In its recent judgment in Erlam v Rahman, the Chancery Division illustrated the court’s approach to determining whether one spouse has a beneficial interest in a buy to let property registered in the sole name of the other spouse, in proceedings for final and interim charging orders.
Practitioners need to get the analysis right. Are you trying to prove the existence of a common intention constructive trust (that is, a beneficial interest arising from agreement between the spouses, which does not depend on proving contributions to the purchase price)? Or should you use a stricter resulting trust analysis (that is, the spouses’ interests match their individual contributions to the purchase price and outgoings, including the mortgage)? Continue reading
