At what point does what’s mine become yours? A critical analysis of the current law on common intention constructive trusts and cohabitation
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.
Work published in the IALS Student Law Review is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.
Those who contribute items to IALS Student Law Review retain author copyright in their work but are asked to grant two licences. One is a licence to the Institute of Advanced Legal Studies, School of Advanced Study of the University of London, enabling us to reproduce the item in digital form, so that it can be made available for access online in the open journal system and repository and website. The terms of the licence which you are asked to grant to the University for this purpose are as follows:
'I grant to the University of London the irrevocable, non-exclusive royalty-free right to reproduce, distribute, display, and perform this work in any format including electronic formats throughout the world for educational, research, and scientific non-profit uses during the full term of copyright including renewals and extensions'
The other licence is for the benefit of those who wish to make use of items published online in IALS Student Law Review and stored in the e-repository. For this purpose we use a Creative Commons licence allowing others to download your works and share them with others as long as they mention you and link back to your entry in IALS Student Law Review and/or SAS-SPACE, but they can't change them in any way or use them commercially