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A matter of trust: the allocation of rights in the family home

  • Anne Barlow (a1) and Craig Lind (a2)


The current law of resulting and constructive trusts and proprietary estoppel is acknowledged to provide uncertain and often unsatisfactory remedies to disputes concerning the allocation of property rights in the family home. This article reviews these inadequacies, particularly as they affect the growing numbers of cohabitants, and puts forward radical proposals for reform. It is argued that the special nature of the family home - where the parties' relationship is based on ‘trust and collaboration’ rather than commercial principles - requires reform which takes account of the broader contributions of both parties to the home and to the family in allocating property rights. The law should strive to treat all family homes in a consistent way, provide greater certainty of outcome, and yet do justice between the parties. A system of modified community property is therefore proposed. Broadly, this will provide a sliding scale of allocation of property rights over time for non-owner partners and a presumption of enhancement of the interest of the primary carer of children of the relationship. However, contracting out should be permitted; and a discretion to adjust the presumptive rights retained by the court where ‘manifest injustice’ is demonstrated.



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1. Per Lord Browne-Wilkinson in Barclays Bank v O'Brien [1993] 4 All ER 417 at 431.

2. Speech by Geoff Hoon (Parliamentary Secretary at the Lord Chancellor's Department) to annual conference of the Solicitor's Family Law Association, Blackpool, 21 February 1998.

3. Eg D Hayton ‘Constructive Trusts of Homes - A Bold Approach’ (1993) 109 LQR 485.

4. Eg S M Cretney and J M Masson Principles of Family Law (London: Sweet & Maxwell. 6th edn, 1997) chs 4 and 5, and A Barlow Cohabitants and the Law (London: Buttenworths, 2nd edn, 1997) ch 11.

5. See R Bailey-Harris ‘Dividing the assets on breakdown of relationships outside marriage: challenges for reformers’ (paper to SPTL seminar at King's College, London on 21 March 1998) (esp at Sff).

6. S Gardner ‘Rethinking Family Property’ (1993) 109 LQR 263 and S Wong ‘Constructive trusts over the family home: lessons to be learned from other commonwealth jurisdictions?’ (1998) 18 LS 369.

7. Unless it is obvious that one gender is being discussed the female pronoun implies both.

8. Law of Property Act 1925, s 53(2).

9. Pascoe v Turner [1979] 1 WLR 431, CA; Greasely v Cooke [1980] 1 WLR 94; and Wayling v Jones [1995] 2 FLR 1029.

10. MCA 1973, Pt 11.

11. See Cretney and Masson, above n 4; Lord Browne-Wilkinson Constructive Trusts and Unjust Enrichment [1996] 10 TLI 98; Glover, N and Todd, P The myth of common intention (1996) 16 LS 325 ; A Lawson ‘The things we do for love: detrimental reliance in the family home’ (1996) 16 LS 218; D Wragg ‘Constructive Trusts and the unmarried couple’ I19961 Fam Law 298; Gardner, above n 6; Hayton. above n 3; P Ferguson ‘Constructive Trusts - A Note of Caution’ (1993) 109 LQR 114: D Hayton ‘Equitable Rights of Cohabitees’ [1990] Conveyancer 370.

12. See Waite LJ in Midland Bunk v Cooke [1995] 2 FLR 915 at 923.

13. See Springerre v Defoe [1992] 2 FLR 388, CA; and Tinsley v Milligan [19941 1 AC 340. Note also the judicial disagreement over what may constitute ‘contribution to the purchase price’: see Cowcher v Cowcher [1972] 1 WLR 425; Harwood v Harwood [1991] 2 FLR 274, Huntgingford v Hobbs [1993] 1 FLR 736.

14. [1971] AC 886.

15. [1971] AC 886 at 909 (emphasis added).

16. Per Nourse LJ in Stokes v Anderson [19911 1 FLR 391 at 400.

17. [1991] 1 AC 107, HL.

18. See M A Fineman ‘Societal Factors Affecting the Creation of Legal Rules for Distribution of Property at Divorce’ in M A Fineman and N Sweet Thomadsen At the boundaries of law: feminism and legal theory (London: Routledge, 1991) p 265; S Watson ‘Erratic bureaucracies: the intersection of housing, legal and social policies in the case of divorce’ and R Graycar ‘Equality begins at home’ both in R Graycar (ed) Dissenting Opinions: Feminist Explorations in Law and Society (North Sydney NSW: Allen & Unwin Australia. 1990) p 70; J Carbone ‘Feminism, Gender and the Consequences of Divorce’ in M Freeman (ed) Divorce: Where Next? (Aldershot: Dartmouth, 1996) p 181; C Smart Law, Crime and Sexuality: Essays in Feminism (London: Sage, 1995) esp pp 135 and 148ff; and KO'Donovan Family Law Mutters (London: Pluto Press, 1993) espp 68ff.

19. See Cooke v Head [1972] 1 WLR 518, CA; Savill v Goodall [1993] 1 FLR 755, Ck; Stokes v Andevson [1991] 1 FLR 391.

20. McHardy v Warren [1994] 2 FLR 247, CA; Midland Bank plc v Cooke [1995] 2 FLR 915, CA (married); Drake v Whip [19961 1 FLR 826 (unmarried).

21. [1995] 2 FLR 915, CA.

22. [1995] 2 FLR 915 at 926.

23. But see Lawson. above n 11.

24. Midland Bank v Cooke illustrates this. The trial court applied strict principles of resulting trusts (see judgment of Judge Hamilton. Hitchin County Court 10 February 1992. cited in judgment of Court of Appeal [1995] 2 FLR 91 S at 920). while the Appeal Court itself adopted a more flexible constructive trust solution. distinguishing Springett v Defoe on grounds that a middle-aged couple's dealings in purchasing their council house family home were more akin to a commercial relationship (per Waite LJ at 928).

25. See Grant v Edwards [1986] 3 WLR 114. CA(esp at 130); Hayton. above n 11: L Flynn and A Lawson ‘Gender. Sexuality and the Doctrine of Detrimental Reliance’ [19951 111 Feminist Legal Studies 10.5 at 1I I. Cf Ferguson, above n 11.

26. Compare Pascoe v Turner [1979] 1 WLR431, CA: Greasley v Cooke [1980] 1 WLR 1306: Coombes v Smith [1986] 1 WLR 808; and Waylinq v jones [1995] 2 FLR 1029. See also Flynn and Lawson, above n 2.5 and E Cooke ‘Reliance and Estoppel’ [1995] 111 LQR 389.

27. See Coombes v Smith [1986] I WLR 808.

28. See J Eekelaar ‘Family Justice: Ideal or Illusion? Family Law and Communitarian Values’ in MD A Freeman (ed) Current Legal Problems (London: Stevens, 1995) p 191.

29. Gardner, above n 6 at 263.

30. Balfour v Balfour [1919] 2 KB 571.

31. MCA 1973, Pt II.

32. A useful definition of such relationships is in K Schumacher ‘Zum gesetzlichen Regelungsbedarf fur nichteheliche Lebensgemeinschaften’ in [1994] 14 FamRZ 857 at 864: ‘An unmarried partnership involving shared lives between a man and a woman or two people of the same sex intended to be lasting and typically allowing no other similar relationships to exist at the same time which is characterised by close emotional ties so as to transcend any relationship formed only for household or economic purposes.’ (translated by Professor Horst Lucke). For a more traditional approach, see definition of ‘de facto relationship’ in New South Wales De Facto Relationships Act 1984, s 3. See also Australian Capital Territory's Domestic Relationships Act 1994, s 3(1): “‘domestic relationship” means a personal relationship (other than a legal marriage) between two adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other, and includes de facto marriage.’ Clarified further in s 3(2): “… a personal relationship may exist between persons although they are not members of the same household …' We propose a broad range of personal relationships which should benefit automatically under our scheme, supplemented by a second tier of other relationships such as parent and child (hin v Blake [1995] 1 FLR 70). siblings (Iven v Blake [1995] 1 FLR 70). quasi-aunt and nephew (Joram Developments v Sharratt [1979] 2 All ER 1084). which could fall within it, but only where similar features of trust and collaboration are demonstrated.”

33. See Lord Brown-Wilkinson, above n 1.

34. See C Gibson ‘Contemporary Divorce and Changing Family Patterns’ in Freeman, above n 18. p 24ff.

35. See Re W (Adoption: Homosexuals) [19971 2 FLR 406. Cf Re D [19773 AC 602 (esp at 638) and Fitzpatrick v Stirling Housing Assn Ltd (1999) Times, 2 November, HL.

36. See C Lind and A Barlow ‘Family Redefinition under Part 111 of the Family Law Bill 1996’ [1996] 2 Web J Current Legal Issues. This has been acknowledged in various other areas of family law: Inheritance (Provision for Family and Dependants) Act 1975, s 1(IA) and Family Law Act 1996, Pt IV. See too Re AB (Adoption: Joint Residence) [19961 1 FLR27.

37. R Bailey-Hams ‘Law and the Unmarried Couple - Oppression or Liberation?’ [1996] 8CFLQ137.

38. Gardner, above n 6; Wong, above n 6; Hayton, above n 3; Browne-Wilkinson, above n 11.

39. Above n 6.

40. Above n 6.

41. Even where there is settlement, a court order by consent is required to render the property reallocation enforceable.

42. Hoon, above n 2 and Supporting Families: A Consultation Document (London: The Stationery Office. 1998) para 4.20.

44. Sections 21, 23A and 24A should the Family Law Act 1996, Pt I1 be implemented.

45. All disputes during the relationship remain subject to the law on resulting and constructive trusts or proprietary estoppel: see eg Midland Bank v Cooke [1995] 2 FLR 915, CA.

46. B Hale ‘Family Law Reform: Whither or Wither?’ in Freeman, above n 28 at 229.

47. This section lays out the criteria for, inter alia, property adjustment orders on divorce.

48. See paras 1(2)(d), (e) of Sch 1 to the Children Act 1989 and Pt I1 of Sch 7 to the Family Law Act 1996.

49. See J v J (a minor)(property transfer) [1993] 2 FLR 56.

50. See A v A (Financial Provision) [1994] 1 FLR 657 and T v S (Financial Provision for Children) [1994) FCR 743.

51. See Sch 7. para 5(b).

52. See the Report to the Lord Chancellor by the Ancillary Relief Advisory Group (30 July 1998) (Thorpe Committee Report).

53. See E Jackson, F Wasoff, M Maclean, and R Dobash ‘Financial support on divorce: the right mixture of rules and discretion’ (1993) 7 Int J Law and Fam 230 and S Cretney ‘Money after Divorce: Mistakes we have made?’ in M D A Freeman (ed) Essays in Family Law, 1985 (London: Stevens, 1986).

54. The Family Law (Scotland) Act 1985.

55. S Cretney, cited in the report of the Family Law Committee of the Law Society Maintenance and Capital Provision on Divorce (1991) para 2.18.

56. Above n 53.

57. See text to n 32 above

58. Our focus is limited to the family home, the asset of greatest significance in most intimate relationships, although similar rules could be extended to other family property.

59. Thus it is not an entirely administrative procedure and avoids criticisms made of the current child support scheme, now subject to reform: see Children First: a new approach to child support (Cm 3992) (1998).

60. That lenders may be more cautious in agreeing to secure debts on the family home, because of its special status, is in line with the trend requiring lending institutions to enquire into the circumstance of the occupation of homes, and to advise those affected appropriately: see eg Williams and Glyn's Bank v Boland [1981] AC 487; Barclays Bunk v O'Brien [1994] 1 AC 180.

61. Legal ownership would resolve the question of initial ownership. Where property is jointly owned (in law or on resulting trust principles) at the outset, the sliding scale of enhancement (described below) applies against the major shareholders in the property, but only begins to operate when the presumed share is as large as the share already owned. The enhancement relating to children applies notwithstanding shared ownership.

62. A definition of and means of proving cohabitation would be provided in the legislation (see above n 32) or associated regulations.

63. Two years aligns the proposals with other statutes: see Fatal Accidents Act 1976, s 1(3) and Inheritance (Provision for Family and Dependants) Act 1975, s 1(1 A). However, a longer qualification period may be thought more appropriate: see discussion in B Atkin ‘De factos down-under and their property’ (1999) CFLQ 43.

64. See A Barlow and S Duncan New Labour's Communitarianism, Supporting Families and the Rationality Mistake (1999) Centre for Research on Family, Kinship and Childhood, University of Leeds, Working Paper no 10, pp 24–28.

65. See eg O'Donovan, above n 18.

66. See eg C Smart and B Neale Family Fragments (Cambridge: Polity Press, 1999) pp 47–56.

67. See D Bradley Family Law and Political Culture (London: Sweet & Maxwell, 1996) p 78, in which a similar sliding scale operating in Sweden is discussed. It is not proposed that negative equity should be automatically shared on the same basis by the non-owner under the scheme, although it could in appropriate circumstances. On principle, debt should not be entered into without actual knowledge (see eg Consumer Credit Act 1974) and, for the most part, shared negative equity would merely exacerbate the poverty of women, see n 18.

68. These rights accrue pro rata during the period of the relationship but will crystallise at the date of separation or when the issue arises. Until then, the legal owner is deemed to hold the home on trust for herself and her partner in the appropriate and gradually changing proportions.

69. Following Gardner, above n 6. The doctrines of constructive trusts and proprietary estoppel are abolished under the scheme in disputes about beneficial ownership of the family home.

70. The interest acquired in the property by the non-owner can only be lost where the court exercises its equitable jurisdiction to achieve this: see below n 82 et seq and accompanting text. See Goldsworthy v Brickell [1987] 1 All ER 853 and National Bank plc v Morgan [1985] 1 All ER 821: the party relying on the presumption will have to prove manifest injustice. This recommendation follows some matrimonial community of property regimes, such as South Africa, where only antenuptial agreements can alter the automatic community of property regime that arises after marriage and governs all matrimonial property; see H R Hahlo The Law of Husband and Wife (Cape Town: Juta & Co, 5th edn, 1985) ch 15, esp pp 257ff.

71. Clear guidance should be given in legislation setting out the kinds of evidence needed to establish ‘manifest injustice’. If proven this would, depending on the circumstances, either enable a party to avoid enforcement of an agreement opting out of the proposed scheme, or, where there was no agreement, act to suspend operation of the scheme itself, permitting the court to substitute a different resolution of the dispute. In the former situation, a claim of manifest injustice will be available in addition to the existing remedies of undue influence and duress. It would, for example, encompass situations where at the time of relationship breakdown, one of the partners has substantial other assets which were either not disclosed when the agreement was entered into, or which became vested in here/him after the parties began to cohabit. As this would either significantly alter the balance between each parties' total assets, or reduce the overall importance of the family home as a family asset – factors which would normally have influenced any agreement of this nature – it is likely that enforcement of the agreement would result in manifest injustice to one of the parties. Manifest injustice which acts to suspend the scheme is discussed further below, see below, text to n 82 et seq.

72. See Carbone, above n 18 at 199.

73. This develops the principle in s 25(1) of the MCA 1973 that the children's welfare in the first consideration. Their housing needs are already taken seriously in the context of divorce: see Cretney and Masson, above n 4 at 429. It also addresses the reluctance of the courts to transfer property to or for the benefit of the child under Sch 1 to the Children Act 1989 to unmarried parents: see T v S (Financial Provision for Children) [1994] FCR 743.

74. See L J Weitzman The Divorce Revolution (New York: The Free Press, 1985) on the harsh operation of the Californian community regimes.

75. This would include tasks such as taking and collecting them from school, looking after them when sick, ensuring they attend medical appointments as necessary, domestic work such as cooking. washing and ironing their clothes, organising their social lives, shopping for their food and clothes, mending their toys, decorating their bedrooms.

76. The example assumes that for this family. with no paid domestic help, caring for the children and servicing their needs fully occupies the week.

77. [(90×5 years) + (70 × 10 years) + (60×5 years)] 20 years: [(10×5 years) + (30 × 10 years) + (40×5 years)]/20 years.

78. In cases of dispute the matter could be settled by mediators taking evidence of the parenting role from the parents themselves.

79. Because of the prejudice that women suffer as a result of the child care obligations they undertake (with the concurrence of men and to the advantage of men and society at large) it is appropriate that a property enhancement be granted to them: see above n 18.

80. Where a person lives in another's home with her children of a prior relationship the other party to that prior relationship must bear the responsibility of compensating the primary carer for the prejudice she suffers by raising those children.

81. See Eekelaar, above n 28 at 214ff. See above n 71.

82. The exercise of this discretion, unlike the discretion exercised under the MCA 1973 or the Children Act 1989 which has increased litigation, only comes into play when the strong presumptions operable under the legislation are alleged to be manifestly unjust on bases given in the legislation itself.

83. See Hoon, above n 2.

84. See references cited inn 18. The system we have proposed begins to address the real wealth disparities that affect the lives of women when they separate from their male partners (by providing for the presumption of occupation and by allowing the beneficial share to increase to as much as 75%).

85. A finding of manifest injustice might be made, for example, where the beneficiary of the scheme was already able to house and support herself (and the children of the relationship) adequately without the aid of the scheme.

86. In Burns v Burns [1984] Ch 317.

87. In Midland Bank v Cooke [1995] 2 FLR 915, CA.

88. In Lloyd's Bank plc v Rosset [1991] 1 AC 107, HL.

89. In Tinsley v Milligan [1994] 1 AC 340.

90. See text accompanying n 70.

91. In Springette v Defoe [1992] 2 FLR 388, CA.

92. In Wayling v Jones [1995] 2 FLR 1029.

93. Under the scheme the principles of proprietary estoppel could only be used in respect of property not acquired under the scheme.

94. In H v M (Property: Beneficial Interest) [1992] 1 FLR 229.

95. See text to nn 82–87 above.

96. See First Report on Family Properly: A New Approach (Law Comn. 52 (1973)); Third Report on Family Property: The Matrimonial Home (Co-ownership and Occupation Rights) and Household Goods (Law Comn. 86 (1978)); and further endorsement of these proposals was given in Property Law: The Implications of Williams & Glyn's Bank Ltd v Boland (Law Corn 115 (1982)) and Family Law: Matrimonial Property (Law Comn. 175(1988)).

97. Law Com 175 (1988), above n 96, para 1.4.

98. See J Todd and L Jones Matrimonial Property (London: Office of Population and Censuses and Surveys, 1972).

99. Hansard, (HL) vol 405, col 112154, 12 February 1980 .

100. See Hansard, (HL) vol 405, col 145146, 12 February 1980 .

101. See Hale, above n 51.

102. See Law Reform Advisory Committee for Northern Ireland, Discussion Paper No 5 Matrimonial Property (Belfast: The Stationery Office, 1999) ch 6.

103. Law Com no 52 (1973), above n 96.

104. Ibid at para 1.

105. Cf Law Com no 86 (1978), above n 96, para 1.8 et seq.

106. See Concession outside the Immigration Rules for unmarried partners, 13 October 1997, Home Office.

107. See eg M D A Freeman ‘Legal ideologies, patriarchal precedents, and domestic violence’ in M D A. Freeman The State, the Law and the Family: Critical Perspectives (London: Tavistock, 1984).

108. Freeman, above n 107, p 65.

109. See eg s137(1) of Social Security Contributions and Benefits Act 1992, s 137(1), under which women are deprived of benefits they would receive as single people, on the ground that they are living in a cohabiting relationship.

110. Bailey-Harris, above n 5.

111. See too text to n 52 above.

112. See Hoon, above n 2.

113. The Law Commission Paper on ‘homesharing’ is of course still awaited.

114. See the Thorpe Committee's Report, above n 52 at 27.

115. See Lord Bridge in Lloyd's Bunk plc v Rosset [1991] 1 AC 107 at 131, HL concerning a wife's ‘natural’ role. CF. Wayling v Jones [1995] 2 FLR 1029 (where the role of the man in a homosexual relationship was not characterised in that way): see Flynn and Lawson, above n 25.

116. See above n 60. Regular updating of the land register may also become appropriate.

117. Parts I-III. See Press Resease no 159/99, Lord Chancellor's Department. 17 June 1999.

118. See above n 18.

119. See above n 2.

* We would like to express our gratitude both to colleagues who read and commented on earlier drafts of this article and to those who commented on the paper we presented to the SPTL conference in Manchester in September 1998. We are particularly grateful to Professor Alastair Bissett-Johnson for his detailed commentary on our proposals.

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