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Common intention and detrimental reliance


Last week we looked at the approach of the Court of Appeal and the instances when they would interfere to change or adjust the decision of the trial judge. As mentioned before, those times are limited to instances when the trial judge was “clearly and blatantly wrong”. The appeal judges could look at the evidence and make their own inferences. In the discussion, the issue of “common intention” and “detrimental reliance” were identified and I take this opportunity to expand on these concepts.{{more}}

These concepts are associated with settled legal principle in relation to the acquisition of beneficial interest in an asset or property. The principle is that the claimant must prove that there was a common intention between the parties that they should share the beneficial title and the claimant acted to his or her detriment on the basis of the common intention. To ensure an equitable distribution of matrimonial or joint property, the court would explore common intention and detrimental reliance with regards to the parties. It is necessary to look at what the parties said and did in terms of their intention to purchase the asset, so as to arrive at a fair share of the beneficial interest.

Common Intention

Very often, while the parties are enjoying themselves, they do not find the time to record or make decisions about the share of beneficial interest in assets. In fact, very few would think that their relationship would come to an end and there would be a need to share the assets. So, where a property is obtained during the marriage, or the relationship and is registered in the name of one party, even though both parties would have contributed, the court will explore the evidence to see if there is common intention.

There are two ways by which common intention could be established. There can be direct evidence of an agreement, that the party without the legal title will have a beneficial interest in the asset. Where there is no express agreement, then the conduct of the parties could be examined to see if they intended to have joint ownership.

Detrimental Reliance

If a person acts upon this common intention by performing in some ways towards the acquisition of the asset, the acts of that party could be regarded as sufficient detriments to his or her interest.

In the Anguillan case, Webster v Dunbar (No.4 of 2011), the trial judge found that there was an express agreement and that the respondent told the claimant that her name could not be included on the title, as she was not a citizen of that country where the property was located. Based on the evidence, the judge thought that the respondent’s purchase of blinds, building material, and general assistance in the construction process were acts done by her to her detriment and would qualify her for a beneficial interest in the property in contention.

In the case of Grant v Edwards and Another (1986, 2 All ER 426) the claimant was a married woman in a common law relationship with the Defendant. Her name was not included on the title, as the Defendant told her it would prejudice her in her pending matrimonial proceedings. There was an express oral agreement. The claimant made indirect contributions to the repayment of the mortgage by sharing the household expenses, housekeeping and bringing up the children. The Court of Appeal thought there was a common intention and that she had acted to her detriment in reliance on that common intention.

Ada Johnson is a solicitor and barrister-at-law.
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