At what point does what’s mine become yours? A critical analysis of the current law on common intention constructive trusts and cohabitation

Abstract

This article examines the current state of the law in relation to the use of common intention constructive trusts to determine disputes arising from the breakdown of relationships between cohabiting, non-married couples. It is clear that there is a need to protect vulnerable parties to a relationship and to maintain certainty with regard to property ownership, but this is a difficult balance to strike.  This examination has been conducted by analysing the key cases that have been heard in the senior courts in relation to this matter since the landmark ruling of the House of Lords in Stack v Dowden almost ten years ago.  This has identified three key issues with the current state of the law: (1) judicial confusion over whether the existence of beneficial shares in property should be imputed or implied by the courts; (2) the creation of unrealistic expectations as to the reliance that the court will place on non-financial contributions to a relationship; and (3) practical and evidential difficulties caused by its implementation.  Further analysis of the Cohabitation Rights Bill suggests that it is unlikely to overcome any of these issues because it seeks to increase, rather than reduce the role of the courts.  This article concludes that the law should be simplified such that couples are allocated the same portion of the beneficial interest in the property as their legal interest unless they expressly declare otherwise.