Fotheringhame v Nelson [2026] EWHC 632 (Ch)

Judgment date: 27 March 2026

https://caselaw.nationalarchives.gov.uk/ewhc/ch/2026/632

HHJ Klein (sitting as a High Court judge). TLATA 1996 case concerning a post-separation change in intention, where the appellant also sought to recover outstanding child maintenance payments.

Overview

This is an appeal by F against the judgment of Mr Recorder Pirchard KC (04/09/2025), who declared the parties’ respective beneficial interests in their property and dismissed F’s counterclaim to recover outstanding child maintenance payments from N.

Background

The cohabitation period between F and N was from 1992/3 till January 2003 (10 years). The parties purchased the family home in 2000 via joint mortgage (part repayment, part interest-only) as beneficial joint tenants but they did not sign the transfer document.

The parties never discussed their respective beneficial interests in the property at or after the time of separation. The parties’ income, expenditure and inheritance received were found to be pooled during their cohabitation.

Following separation, F continued to occupy the property with their three children.

At first instance

The judge found that the parties’ intentions had changed on separation, but could not find to what shares. He therefore imputed the intention to be fair and set this at 80.7% to F, lower than she wanted. While he accepted that F had made a substantial contribution to the upkeep of the property, he rejected her claim that she had improved the property, due to the small amount spent (£7k) over 20 years.

He dismissed the application to recover outstanding child maintenance payments from N as neither party asked the court to decide the outstanding amount due.

F’s first ground of appeal

F argued that when calculating how the property should be divided, the judge failed to take into account that following the separation she (a) paid the mortgage interest payments, building and contents insurance, council tax and property repairs, and (b) did not receive all the outstanding child maintenance payments due.

The first ground failed for the following reasons:

• The judge did take into account the mortgage interest payments as well as F’s payment of council tax and her expenditure on the maintenance and repair of the property and the weight the judge attached to them could not be successfully challenged
• F’s expenditure was on maintenance and repair, not improvement of the property.
• The council tax and contents insurance were payments of occupation, not of intended ownership of the property.
• No fact was found as to the amount F paid for buildings insurance. In any case, F’s stated payments for building insurance amounted to only 5% of the parties’ total property-related expenditure over the period and this was deemed to protect her own property. If the child maintenance paid by N were to be considered, F’s contribution would drop to 4%.

F’s second ground of appeal

The judge wrongly categorised F’s case as one in which N’s property interest reduced post-separation, where F’s case was that the presumption of joint tenancy in law and equity was displaced at the time of separation and that the parties’ intentions in respect of the size of the beneficial interests changed. Therefore, based on this wrong characterisation, the judge wrongly imputed to the parties the size of their shares of the property.

This ground failed for the following reasons:

• The judge correctly characterised F’s case.
• In any event a mischaracterisation of the case does not inevitably lead to any further error, including an imputation error. Therefore, even if this ground were to succeed, it could not lead to a successful appeal.

Legal principles

• Jones v Kernott [2012] 1 AC 776, at [51]: The starting point is that equity follows the law and that if a property such as a family home is bought in joint names where both parties are responsible for the mortgage and there is no express declaration of beneficial interests, the parties are joint tenants in both law and equity. This presumption can be displaced if it is objectively shown from their conduct that the parties reasonably understood that they either: (i) had a different common intention at the time they acquired the home, or (ii) later formed the common intention that their respective shares would change.
• Stack v Dowden [2007] 2 AC 432, at [69], and Oxley v Hiscock [2005] Fam 211, at [69]: Examples of accepted evidence for drawing inferences of a displaced presumption of joint tenants include mortgage contributions and buildings insurance.
• Walker v Hall [1984] FLR 126: The beneficial interests of the parties do not automatically cease upon cessation of cohabitation, but upon buy out or sale.
• Unpaid child maintenance can be relevant to imputation, per Lloyd Jones LJ in Barnes v Phillips [2016] 2 FLR 1292, at [41]. However, this had not been argued below.

Key reasons why the appeal was dismissed

• When the court imputes to parties their respective shares of a property, it is trying to determine what the parties’ intentions were had they thought about the matter at the time. This can be deduced by their conduct at the time.
• The judge was making an evaluative judgment and in doing so gave appropriate weight to the various items of expenditure relied upon by F.
• The payment of council tax and contents insurance is not an indicator of intended ownership of the property; rather, it is merely an indicator of occupation.
• F ‘island hopped’ over N’s child maintenance payments and ‘cherry picked’ only her expenditure of child maintenance to make out her case.