‘So there is more equity in Ravenshurst but Thornfield is worth more … I’m not sure how to work out if he should pay me anything? I’d like to get my bonus back if possible.’
‘I have now been through your email and the various attachments. I am glad that you and Rubi [ie. Mr Cohen] have been able to discuss matters and agree a way forward. … If we can finalise a settlement with Rubi, this will be embodied in a Court Order and approved by the Court without the need for protracted proceedings. … To draft the divorce petition … please can you let me have the following information:- [followed by a list of 6 questions]’
‘My lawyer looked at the sum of the assets and having listened to how much of our lifestyle I had supported during our time together, she advised that I could ask for£70K ; however when Reuven did not agree I reduced it because again I just wanted to be over and finalised. We settled on the much lower amount of£30K which was really not even a drop on what I had paid for over the years of our relationship …’ ‘The sum of money agreed was not connected to the houses at all but was to demonstrate some acknowledgement of the huge amount of money I had paid out … over the years.’
‘In respect of financial matters, I understand that you and Abigail have agreed to divide the matrimonial assets as follows: – 1. You are to retain Thornfield Avenue property subject to the Santander mortgage; 2. Abigail is to retain Ravenshurst Avenue property subject to the Woolwich mortgage; 3. You are to retain the development property held with a third party; 4. You are to make a lump sum payment to Abigail of£75,000 (upon her signing over her interest in Thornfield Avenue property); …’
‘15. The respondent [i.e. Cohen] shall use his best endeavours to release the applicant [Wilmore] from her obligations in respect of the Santander mortgage upon the transfer of Thornfield Avenue as provided for at paragraph 19. Lump sum order 18. Upon the transfer as provided for at paragraph 19 the respondent shall pay, or cause to be paid to the applicant the sum of£35,000 . Transfers of property 19. The applicant shall transfer to the respondent all her legal estate and beneficial interest in Thornfield Avenue subject to the Santander mortgage on or before31 August 2016 . 20. The respondent shall transfer to the applicant all his legal estate and beneficial interest in Ravenshurst Avenue subject to the Woolwich mortgage on or before31 August 2016 .’
‘All conveyances of land or any interest therein are void for the purposes of conveying or creating a legal estate unless made by deed.’
‘1(1) The only estates in land which are capable of subsisting or of being conveyed or created at law are – (a) An estate in fee simple absolute in possession; (b) A term of years absolute. […] 1(3) All other estates, interests, and charges in or over land take effect as equitable interests.’
‘(1)(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will; […]’
‘English law provides no clear and all-embracing definition of a constructive trust. Its boundaries have been left perhaps deliberately vague so as not to restrict the court by technicalities in deciding what the justice of a particular case may demand.’ (2) In the Court of Appeal decision in Paragon Finance v DB Thakerer & Co[1999] 1 All ER 400 , Lord Millet stated at p.409 the circumstances when the law of equity would impose such a trust: ‘[A] constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually the legal estate) to assert his beneficial interest in the property.’ (3) In Bannister v Bannister[1948] 2 All ER 133 , the purchaser bought a cottage from his sister-in-law on the understanding (not in writing) that she could continue to live in it rent-free for the rest of her life. The purchaser tried to obtain possession of the cottage; the defendant claimed that the oral agreement amounted to an informal declaration of trust whereby the purchaser would hold the property on trust for her during her lifetime. The formality for such a declaration of trust over land would normally have to be in writing (s 53(1)(b) of LPA), but the Court of Appeal held that the purchaser’s action to take possession was unconscionable, and imposed a constructive trust to give effect to the defendant’s lifetime interest in accordance with the oral agreement. (4) The court in Bannister v Bannister also held that the oral agreement had created a settlement under theSettled Land Act 1925 (‘SLA’). Under the SLA settlement imposed by the court, the sister-in-law became the tenant for life, and had the power to call for the estate to be conveyed to her and the power to sell it. (5) In Yaxley v Gotts and Anr[1999] 3 WLR 1217 , Yaxley (a self-employed builder) was promised by Gotts, that Yaxley would be given the ground floor of a three-storey house (to be purchased by Gotts) in exchange for his labour and materials to convert the house into flats for letting, and for managing the letting of the flats afterwards. The agreement was reached with Gotts Snr, but it was the son who bought the house, and Gotts Jnr refused to grant Yaxley an interest in the property. The oral agreement which would have been void and unenforceable for failing to be in writing (s 2 of LPMPA 1989) was held to be enforceable on the basis of a constructive trust under s 2(5) of LPMPA. (6) In Yaxley v Gotts, Robert Walker LJ described the constructive trust at 1231 as: ‘… the species of constructive trust based on “common intention” is established by what Lord Bridge in Lloyds Bank Plc. V Rosset[1991] 1 AC 107 , 132, called “agreement, arrangement or understanding” actually reached between the parties, and relied on and acted on by the claimant. A constructive trust of that sort is closely akin to, if not indistinguishable from, proprietary estoppel. Equity enforces it because it would be unconscionable for the other party to disregard the claimant’s rights.’ (7) The doctrine of estoppel is generally used as a defence against a claim, but the doctrine of proprietary estoppel is an exception to this general rule and was used as a cause of action in Gillett v Holt[2000] 2 All ER 289 . The claimant Gillett had worked for some 40 years from childhood for little pay for Holt, a gentleman farmer, and had incurred expenditure on the farmhouse, refused offers of alternative employment, and gone far beyond the extent of employee’s duties, on account of the repeated assurance from Holt that he would leave the entire estate to Gillet. In giving the leading judgment, Robert Walker LJ stated (at p. 301) that ‘the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments’ (i.e. assurance or encouragement, reliance and detriment), but that: ‘… the quality of the relevant assurance may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a “mutual understanding” may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.’
‘… the grant to the court of power in 1972 to make the two new kinds of orders did no more than enlarge the ways in which the court could exercise the jurisdiction it already had to order one spouse to make a once-for-all financial provision for the other. The difference between a lump sum order which the court already had power to make and a property transfer order that it acquired power to make in 1972 is the difference between providing money and money’s worth. The finality of the break effected by the consent order dismissing the wife’s application for financial relief cannot in their Lordships’ view be prejudiced by the court’s having acquired at some later date a power to make once-for-all orders for financial position of kinds which were not available at the time that the “final break” which the court then approved was made.’