In order to have agreed something, it is necessary for the people who are agreeing to communicate. This rather obvious point was at the centre of a recent court case regarding the ownership of a house which was the property of a couple who married, divorced, got back together again and then broke up again. The court had to consider whether the couple’s intention to share ownership of the house could be inferred from their conduct, or whether there must be some explicit evidence of an agreement to do so.

The house in question was originally owned by a Mr Lightfoot and his first wife, whom he had divorced in the 1980s. After the divorce, he retained the house. In 1992, he married his second wife, Mrs Lightfoot-Brown, after she had lived with him in the house for several years. The couple had four children, but divorced in 1996. As part of the divorce settlement, Mr Lightfoot transferred his interest in the house to Mrs Lightfoot-Brown and she was obliged to continue to make the mortgage payments.

Later on, they were reconciled and Mr Lightfoot again lived in the house. He paid some of the mortgage payments and also paid a lump-sum of £41,000 off the mortgage, both without Mrs Lightfoot-Brown’s knowledge. The couple planned to remarry. However, in 1998, their relationship foundered again.

Mr Lightfoot claimed that during a conversation he had had with his ex-wife she had agreed that they should share the house equally and so he claimed a half interest in it. In court, the judge was unwilling to accept Mr Lightfoot’s arguments, concluding that his mortgage payments and lump-sum payment were really a substitute for maintenance payments and that there was insufficient evidence of a common intention that he should share a beneficial interest in the house. This ruling was backed up, on appeal, by the Court of Appeal.

Judges are generally unwilling to infer that conduct alone is sufficient to prove that an agreement exists. In the case in question, if their intention had been to hold the property jointly, the couple should have put the agreement in writing in proper form, so its existence could not be a matter of dispute.