White v White [2003] EWCA Civ 924

• Plaintiff and Defendant bought a house together as joint tenants with a mortgage. Then they had kids and split up. Plaintiff (mother) requested an order for the sale of the house.

• Defendant 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.