P and D bought a house together as joint tenants with a mortgage. Then they had kids and split up. P (mother) requested an order for the sale of the house. D asked the court not to grant the order and use its discretion under s.14 of 1996 act. CA allowed the sale of the house. The competing interests were the mother’s need for realisation of capital to provide for herself and her kids a separate home, as against the children’s interests (see s.15(1)(c), in that they were emotionally attached to their home. Another factor to be considered under s.15(1)(a) were the intentions of the parties for which the trust was set up, which here could clearly not include a home for the children (whose birth had not been planned at time of purchase). The 1996 act was silent as to how much weight to give each factor to be considered under 1996 act, and this was up to the court.
Arden LJ: The intention referred to in s.15(1)(a) is “be the intention of all the persons who created the trust and be an intention which they had in common.” This doesn’t include an intention subsequently arrived at- goes against ordinary meaning of intention. “Intention” is the intention of the parties when they created a trust- it cannot be retrospective.