Introduction
As previous chapters have shown, the trust can be used for many purposes and may be part of sophisticated arrangements entered into by wealthy individuals. This chapter, by contrast, is largely concerned with the role played by implied trusts in resolving disputes over the ownership of the family home when the parties involved had given no thought to their property rights. Since there is no special regime applicable to assets owned by a married couple or civil partners (save when they separate) or to those owned by cohabiting couples and other family members, this is perhaps one of the most significant roles of trusts law in terms of the numbers potentially affected. The situations in which issues of ownership may fall to be determined were succinctly set out by the Law Commission in its discussion paper, Sharing Homes (Law Commission No 278 (2002), paras 1.10–1.12):
1.10. Over the last thirty years or so, a recurring question encountered by litigants before the courts in England and Wales has concerned the property entitlements of persons who are sharing, or have shared, homes together. The question arises in various contexts, and the many ways in which it has been answered have emphasised the lack of clear principle in this vital area of the law.
1.11. There are four principal circumstances in which the determination of the ownership of the shared home is highly material and to which we will return throughout this paper: They are as follows:
(1) The persons (two or more) who share a home cease to do so. Typically, one leaves. It may be that this follows the breakdown of a relationship between the sharers. It may be that the living arrangement is no longer convenient to the person who leaves, as they have obtained employment elsewhere. The question arises of whether the person who leaves is entitled to receive payment of a capital sum representing their share of the property, or, indeed, in the event of no satisfaction being obtained, whether that person can force a sale thereof.
(2) One of the persons who has been sharing the home dies. The question arises whether that person had an interest in the property, and, if so, what therefore is now to happen to it.
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