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This may apply, for instance, where one
party has charged their share of the matrimonial home for
the benefit of the other spouse.
E.g in a legal case known as re Pittertou
1985, the wife charged her share to raise money to invest
in her husband's business.
The court held that it should be presumed,
in the absence of contrary evidence, that the wife intended
that
- Her share should only be charged
by way of security, so that if the charge were to be enforced
by the lender.........
- ........She would be treated
like a surety.
The effect is that the wife is entitled
to be indemnified as far as possible out of the husband's
share of the property before any recourse is had to her own
share.
As it stands, the doctrine applies strictly
between husband and wife. It must be arguable however, that
the doctrine should apply between those who live as husband
and wife or even partners. In practice the doctrine commonly
arises in disputes as to the entitlement of one spouse against
that of the others trustee in bankruptcy.
Purnells hold a counsels opinion on this legal principle.
Quite often we find that the person who is to be made bankrupt
has an interest in his home of much less than half the equity!
Contact us for advice.
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