Waller v Waller [1967] 1 WLR 451, ChD

Sale of the matrimonial home where sole legal title is vested in one tenant, but equitable title vested in both.


A married couple made joint contributions to the purchase of a property intended to serve as the matrimonial home, with sole legal title to be held by the husband. As this is a statutory trust, he was obligated not to sell the property without first identifying and appointing a second trustee responsible for consulting the wife as a beneficiary of the trust. The husband attempted to sell the property without undertaking such actions, and so the wife applied to the Court for an interlocutory injunction to prevent her husband from completing the sale of the property.


Whether the husband could legally sell the property as the owner of sole legal title where the wife is a tenant in common in equity.


The Court held that the injunction would be granted. Had the parties not been married, then the husband would have been deemed a trustee, holding the property on trust which would have prevented him from providing good receipt of the sales proceeds had he not appointed the additional trustee as per the Law of Property Act 1925, s.26(3). The Court held, as per Stamp J, that as the wife was a tenant in common in equity, their marriage should not serve to lessen her legal rights in comparison to had she been a tenant in common in equity not married to the sole legal trustee.

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