Bernard v Josephs [1982] Ch 391
Trust of the family home; cohabitees ascertainment of their beneficial interests.
Facts
Bernard and Josephs purchased a house where they lived as man and wife, holding the title to the property in joint names with no declaration of trust. Both parties worked and they had joint responsibility for the mortgage. Part of the property was let out to tenants. Three years later, the relationship broke down and Bernard left the house. Josephs remained in the property, remarried, continued to let out parts of the house, and continued to pay the mortgage payments. Bernard claimed a half share of the house after the discharge of the mortgage.
Issues
Josephs claimed the property was not held in equal shares because he had contributed far more to the initial purchase price, and also after the property had been acquired. He asserted it would be unjust to award Bernard a half share and requested an order for sale be postponed until her interest could be calculated proportionately, and he would then buy her out of the house. Bernard contended that since they both agreed to buy the property jointly and both took responsibility for the mortgage, the property should be divided equally because both should be considered as having contributed equally.
Decision/Outcome
When ascertaining the respective shares held by cohabiting couples in property held in joint names with no declaration of trust, the parties should be treated as though they were married. The shares should ordinarily be calculated at the time of separation, but later events may be considered relevant after the relationship break down. The property was held in equal shares subject to the discharge of the mortgage, and account was to be given to the extra mortgage instalments paid by Josephs.
Updated 21 March 2026
This article accurately summarises the Court of Appeal’s decision in Bernard v Josephs [1982] Ch 391. The case remains a valid authority for the historical approach to ascertaining beneficial interests in jointly-held property between cohabitees where no express declaration of trust exists.
However, readers should be aware that the legal landscape in this area has developed significantly since 1982. In particular, the House of Lords in Stack v Dowden [2007] UKHL 17 and the Supreme Court in Jones v Kernott [2011] UKSC 53 substantially refined the approach to quantifying beneficial interests in jointly-owned property. Where property is held in joint names, the starting point is now that beneficial ownership reflects the legal ownership (i.e. equal shares), and the burden lies on the party seeking to show a different division. The courts now apply the concept of a ‘common intention constructive trust’, with courts willing to impute an intention to the parties where no actual common intention can be found. The approach in Bernard v Josephs of treating cohabitees ‘as though married’ should be understood in its historical context and is no longer the governing framework. Students should treat this case as part of the doctrinal background rather than a statement of current law.
