CASE LAW IN RELATION TO TRUSTS OF THE FAMILY HOME.

Critically evaluate the significance of recent case law in relation to trusts of the family home.

Critically evaluate the significance of recent case law in relation to trusts of the family home.

The area of implied trusts is a problematic one, not least because of the way in which the Court of Appeal (CA) and the House of Lords (HL) have dealt with this area of law. This has lead to a degree of uncertainty. Many argue that instead of this area being based on fairness, as maybe it should be, judges have instead followed principles, which although they guarantee certainty, do not guarantee fairness, which this area should promote.

On the other hand, a CT is far more difficult to establish, especially where there is not express agreement to share. The idea that there should be an express agreement to share, at the time of acquisition, has also been criticised. A more likely situation in which a CT will arise is one where 'it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interests in the property and deny the beneficial interests of another'. The Implied CT, arises where there has been no express discussion as to whether the couple will share the property in question but one party has done something which they believe guarantees a share in the home as evidenced by various cases[5]. In this situation the courts must apply the 'common intention' approach i.e. conduct by one of the parties from which it can be inferred that there was an 'intention' to share the property. When considering if there is a 'common intention' to share the courts will consider a number of things. They will look at what contribution the party has made and whether this is enough to constitute a share in the family home.

This was the starting point in the leading case of Gissing v Gissing. In this case, the HL stated that the wife's contribution was not sufficient enough to constitute a share in the family home. Furthermore, Lord Diplockdiscussed the different types of trust in this context, and went on to state on several occasions that he did not believe a 'common intention' to share could be inferred from the conduct of either party.

Before analyzing this case, it is important to consider the traditional approach of equity to the post of housewives on the usefulness of the family home passed to the sole name of her husband. Before the Twin cases Pettit Pettit V and V Gissing Gissing, in cases where there was no legal agreement that both spouses would share a useful property interest, interest in his wife's property rights only recognized when she made a direct payment of the purchase price of real estate. In such cases, the law will assume that the contribution, the general intent of the parties that the legal owner to hold on trust ...