16.2.4. Sale and other dispositions of co-owned property

Co-ownership 597

together at the father’s former matrimonial home; the two boys remained in the care of their father, the mother visiting them regularly. Early in 1976 the mother became pregnant by the father and gave birth to the child, who is the subject of the wardship proceedings, on December 22, 1976. At about that time, the two older boys joined their mother and from then until the separation in August 1979 all five lived together, at first at the father’s former matrimonial home, until in April 1978 [when] the parties jointly acquired the cottage which is the subject of these proceedings. This property was purchased for £13,950, of which £10,000 was raised jointly on mortgage. The balance was provided as to £2,400 by the mother and as to £1,050 plus expenses by the father. The mother’s contribution was derived from her share of her former matrimonial home. On April 28, 1978, the property was conveyed into their joint names as trustees upon a bare trust for sale with power to postpone the sale in trust for themselves as joint tenants.

The irresistible inference from these facts is that, as the judge found, they purchased this property as a family home for themselves and the three children. It is difficult to imagine that the mother, then wholly responsible for two children, and partly for the third, would have invested nearly all her capital in the purchase of this property if it was not to be available to her as a home for the children for the indefinite future. It is inconceivable that the father, when he agreed to this joint adventure, could have thought otherwise, or contemplated the possibility of an early sale without the consent of the mother. The underlying purpose of the trust was, therefore, to provide a home for all five of them for the indefinite future. Unfortunately, the relationship between the father and the mother broke down very soon, and the parties separated at the beginning of August 1979 in circumstances of great bitterness . . .

It was argued that the father ought to be allowed to ‘take his money out’ or ‘to realise his investment’. In point of fact, his investment amounted to less than one-fifth of the purchase price of the property, and was smaller than the mother’s investment. The major part of the purchase price was provided by the mortgagees, and the mother is prepared to accept full responsibility for paying the interest on the mortgage, and keeping up the capital repayments. The father has a secure home with his mother. There is no evidence that he has any need to realise his investment. It is an excellent one, combining complete security with considerable capital appreciation in money terms. His share is now said to be worth about £5,000, i.e. it has more than doubled in value in two years. On the other hand, a sale of the property now would put the mother into a very difficult position because she cannot raise the finance to rehouse herself or meet the cost of borrowing money at present rates. So there is no justification for ordering a sale at the present time.

For these reasons the judge was right not to order an immediate sale but the form of his actual order is not satisfactory. Under section 30, the primary question is whether the court should come to the aid of the applicant at the ‘particular moment and in the particular circumstances when the application is made to it . . . see Re BuchananWollaston’s Conveyance [1939] 1 Ch 738, 747. In the present case, at the present moment and in the existing circumstances, it would be wrong to order a sale. But circumstances may change unpredictably. It may not be appropriate to order a sale when the child