Miriam Shalom discusses Dervis v Deniz [2025] EWHC 902 (Ch) in which she defended the successful respondent, Mr Deniz. Miriam was instructed by Burrows Solicitors.
She highlights points lawyers advising a separating cohabitant will need to bear in mind when considering communications between the former cohabitees about their home.
The appellant, Ms Dervis on appeal had sought to rely on emails she claimed amounted to a release by disposition of Mr Deniz’s beneficial interest in their jointly owned property.
Ms Dervis argued the case fell within the principles established in Hudson v Hathway [2022] EWCA Civ 1648 for the disposition of a beneficial interest and for allowing a new point on appeal.
The court considered:
- the principles applicable to raising a new point on appeal, and
- the factual exploration necessary to determine the parties’ intentions where it is said that one party has disposed of a beneficial interest.
Background to the High Court proceedings
Ms Dervis and Mr Deniz had been in a romantic relationship and were living together.
The house they lived in was originally bought by Ms Dervis and a former husband. When their marriage had ended, the property was transferred to Ms Dervis and her sister.
Subsequently Ms Dervis’ sister decided she no longer wished to be liable on the mortgage as she wished to buy a home with her future husband.
In 2018 after discussions between the parties, the house was transferred into the joint names of Ms Dervis and Mr Deniz. Both assumed liability under the mortgage and Ms Dervis’ sister was released from the mortgage.
The transfer included a declaration of trust that stated the 2 were to own the property as joint beneficial owners.
Their relationship broke down.
Subsequently, at trial Ms Dervis lost an argument that an implied trust arose at the time of the transfer into her and Mr Deniz’s joint names because the beneficial interest had been expressly declared.
An order for sale was made.
Ms Dervis then sought to appeal the order by relying on emails Mr Deniz had sent about the house after the breakdown of their relationship.
The emails
The emails made it apparent that at the time they were sent Mr Deniz was seeking a reconciliation and that Ms Dervis did not want a reconciliation.
Ms Dervis asked Mr Deniz:
'In order to move forward with our lives, I am asking that if you are willing to be reasonable enough to provide consent to remove yourself from the mortgage so that you can no longer use this as a weapon to control me. I also ask that you pay off your 6K credit card debt which I have been covering.'
The emails continued with Mr Deniz at one point making this statement:
'I don’t want the house it’s yours it’s always been yours! Let me tell you something the only thing I enjoyed doing with the house was doing it up and seeing u smile. Every BODY knows this and was against what I was doing, no one even wanted Me to be with you but I chose you, U made me happy my life was in your hands your control not for other ppls happiness or control!'
Mr Deniz also made a further statement:
'I hate that house I want nothing to do with it. I wish you sell it and get a new place cosy, not a house full of history. Like you got dead ppl walking around in there. I would love to do that with u start fresh new area'.
Ms Dervis replied:
So why won’t you come off the house if you want nothing to do with it? You attacked me, I don’t want a future with a violent coward.
After several more emails and a phone call between the parties, Mr Deniz sent an email stating
'I give my full consent to be removed of the mortgage at [the property].
I can be present to sign any documents needed.
Not seeking any financial interest in the property.
Give me till the end of the month I will transfer £6000 pounds to you'
Issues on appeal
The claim which Ms Dervis sought to pursue in the appeal was that:
- the email exchanges contained an effective disposition, by release, of Mr Deniz’s beneficial interest in the house to her
- consequently the judge was wrong to decide that the parties hold the property on trust for themselves as beneficial joint tenants and wrong to decide that the house should be sold.
The emails had not been part of the pleaded case put forward at trial. They had been very briefly touched upon at first instance.
Thus the appeal gave rise to 2 issues.
- Should Ms Dervis be permitted to pursue the claim based on the emails in the appeal?
- If she were successful on the 1st point, did those email exchanges amount to a disposition of Mr Deniz’s beneficial interest in the house to her?
Ms Dervis sought to argue that permission should be given to rely on these emails on appeal as the case fell squarely into the principles expounded in Hudson v Hathway.
[Hudson v Hathway was a Court of Appeal case where emails had been relied on as establishing a post-separation agreement and constructive trust. On a 2nd appeal it was initially raised by the Court of Appeal and argued by the respondent that such emails were sufficient to comply with the formalities for a disposition of a beneficial interest and did amount to a disposition.]
In this case Ms Dervis sought to argue that the same principles applied to the emails she sought to rely upon.
Decision on raising a new point
An important issue in the appeal was that the claim for release of the beneficial interest was not pleaded nor was it the subject of a decision by the trial judge.
The judge considered the authorities on the raising a new point including Singh v Dass [2019] EWCA Civ 360 and Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337 (which set out a spectrum of cases where the question could arise about whether to permit a new point on appeal).
The judge considered that the present case fell on what is essentially the wrong end of the spectrum. He found that because of the previous full trial involving live evidence, cross-examination of witnesses, that new point would have changed the course of the trial significantly in terms of the evidence and the submissions on that evidence.
His reasoning included considering:
- what information a judge would expect to have in construing such emails to see if they amounted to a release and disposition of the beneficial interest
- the extent to which the factual matrix is relevant to the construction of a document.
The emails in the present case were not as clear in their meaning as the relevant emails in Hudson v Hathway.
The judge refused Ms Dervis permission for the new claim relying on the emails. Consequently, he did not seek to answer the question of whether the emails amounted to a release of the beneficial interest.
What does the judgment mean for solicitors advising separating cohabitants?
Solicitors will be well aware of the principles that apply when considering the beneficial interest at the time of acquisition and that the beneficial interest may be varied by agreement at a later stage of the relationship with detrimental reliance.
However Hudson v Hathway shows it is possible to dispose of a beneficial interest by an email as long as it meets the relevant formality requirements.
The present case shows that if there is an argument to be made about post-transfer communications and their legal effect, this needs to be raised and explored at trial.