Cohabitation and Common Intention Constructive Trusts:

Married couples can only end marriage by death or divorce, the court has discretion over deciding who gets what (White v White: the courts aim for the "yardstick of equality"). If one is married but cohabiting, they do not gain the same legal rights as married couples.
Parties must have a common interest in order for the courts to establish beneficial ownership i.e. there must be a common intention to share ownership of the property, thus creating a constructive trust.

Pettitt v Pettitt: Former husband claimed to have a share in the family home based upon improvement she had made upon the home. The presumption of advancement between husband and wife had reduced in significance, although as he had contributed to the purchase price he had a small beneficial interest.

Gissing v Gissing: common intention and detrimental reliance is required for a constructive trust.

Lloyd's Bank v Rosset: House was bought in husband's name, in the absence of express and implied evidence, direct contributions to the purchase price will justify a constructive trust due to common intention to share the property beneficially. I
Oxley v Hiscock: Each is entitled to a share which the court considers to be fair in regard to the whole course of the dealings (including factors other than financial contributions).

Stack v Dowden: Stack and Dowden were unmarried and bought a new house in which Dowden paid more of the purchase price and mortgage- their finances were separate throughout. There is a presumption of equality on beneficial ownership.
Equity follows the law ∴ sole legal ownership = sole beneficial ownership. Intention can be actual, inferred or imputed.
The onus of proof is upon the person seeking to show the beneficial ownership is different from the legal ownership.
A holistic approach is taken in determining this onus, but unlike Oxley, only relevant conduct is considered e.g. discussions during the transfer, reasons why the home is in the name it is, the nature of their relationship, how finance and expenses were arranged and mortgage. Here, Dowden had a larger beneficial interest.
In Stack v Dowden the quantification of each's interest was the issue, however, in cases where there is joint legal and beneficial ownership, the question is what was the parties intention as opposed to what was the extent of their beneficial interest.

Abbott v Abbott: Married couple bought a plot of land in husband's sole name and he accidentally accepted her beneficial interest which means there is an imputed common intention to share ownership.

Was it intended that the parties should share beneficial interest?
If it was intended, in what proportions was it intended?

James v Thomas: James lived in a cottage Thomas owned and to which he provided general expenses. As there was no express agreement, James had no intention from her and Thomas' the conduct alone.

Fowler v Barron: Barron paid for the mortgage and house and Fowler provided for the children. Barron claimed he intended to keep the house for himself, joint ownership was only an insurance upon his death. Held, a secret intention did not affect a common intention to share and so the presumption of equity at Law could not be rebutted.

Jones v Kernott: K and J cohabited and had two children together, K later abandoned J whom met all mortgage and other payments. Jones sought a declaration that she was the sole beneficial owner of the family home although she had earlier accepted that K was entitled to a one half beneficial interest in the property. Held, there was evidence of an actual change in the parties’ intentions; when a co-habiting couple buy a family home in joint names but do not declare the nature of the co-ownership there is a presumption of a beneficial joint tenancy, this can be rebutted if there is evidence to show either that they had a different common intention at the time of acquisition or that they subsequently reached a different common intention. The common intention is to be deduced objectively from the parties’ conduct (‘the whole course of dealing’). If:
(a) it is clear that the parties formed a different common intention either at the time of acquisition or subsequently
(b) it is not possible to find an express or inferred agreement (common intention)
then the parties are entitled to the ‘share which the court [honestly] considers just having regard to the whole course of dealing between them in relation to the property.’

Aspden v Elvy: Aspden purchased a Farm as sole proprietor after which he and Elvy began cohabitating. After they broke up, Aspden transferred the Barn to Elvy. The barn was converted and both sides had a financial and work input. Aspden claimed to have paid the majority of the sum. It was held the Barn was held by Elvy on shares of 75% to her and 25% to the claimant, there had not been express discussions about the Aspden acquiring an interest in the property and that the common intention of the parties (objectively ascertained) during their whole course of dealing was that Aspden should only acquire a small interest.

	Created by cadhla_corrigan about 10 years ago

LLB Trusts and Equity (7. Constructive Trusts) Note on Constructive Trusts, created by cadhla_corrigan on 04/05/2014.

Constructive Trusts