3 October 2017
Jonathan Adamson graduated with a first class LLB Law degree in July 2017. He is due to begin the LPC in January 2018 at BPP Law School before commencing his training contract with Allen and Overy in September 2018. His dissertation was supervised by Dr Lu Xu.

My dissertation provided a restructured understanding of the operation of the law regarding the rights of unmarried cohabiting couples as it currently stands in England and where it might go in the future. I argued that the legal device employed to determine the property rights of unmarried cohabitees upon the termination of their relationship – the ‘institutional’ common intention constructive trust – suffers from doctrinal difficulties due to the requirement of establishing a ‘common intention’. My research aimed to show that if English law were to adopt the methodology of the Commonwealth courts in similar cases, the use of  ‘remedial’ constructive trusts would provide a more satisfactory road ahead, given the absence of legislative intervention.     

The constructive trust is the tool most commonly employed by the courts to determine the allocation of rights in the family home where the parties are unmarried and their relationship has come to an end. Due to the parties being unmarried, family law statutes cannot deal with the distribution of their assets. With the number of unmarried, property-holding relationships having significantly increased over several decades, the social and practical importance of this subject cannot be understated. Often, the legal title to the house will only be registered in the name of only one of the cohabiting couple.

In order for a constructive trust claim to succeed under English law, the courts require a common intention. Whilst this can be clearly expressed and would be sufficient as the basis for a constructive trust, in real life it is very rare for the parties to be in agreement about whether such a statement was ever made. Indeed, it might be so long ago that they moved in together that their accounts are completely imagined.

And yet English law, provided the claimant has made a contribution to the purchase price, will still insist on finding a common intention on behalf of the parties even if they have not reached an express agreement. This is a legal fiction as the court is supposing that the parties created an agreement where, in fact, they did not. It is entirely possible, therefore, the search for such an intention will become divorced from any realistic assessment of the actual intention of the parties.

It is this for this reason that the Canadian and Australian courts have deviated from the English approach in searching for a common intention as the basis of a constructive trust claim. The Canadian courts, for instance, will impose a constructive trust where the person holding title to the property would be unjustly enriched if she were permitted to retain it. This is radically different from the English position, which is based solely on the notion of ‘breadwinning’ and mortgage payments as giving rise to property rights in equity. So if a claimant had not contributed to the deposit or mortgage repayments, under the English approach his domestic contributions over a fifteen-year period would be irrelevant. However, this would be sufficient as the basis for a constructive trust under the Canadian approach.

There is, though, much antipathy in English legal discourse towards adopting either the Canadian or Australian model constructive trust, due to it being regarded as ‘remedial’ rather than ‘institutional’. That is to say, whereas under an English institutional constructive trust the trust is said to arise on the happening of a certain set of facts in accordance with legal rules, the remedial constructive trust depends not on the application of rules but on the exercise of judicial discretion. I argued that the case against remedial constructive trusts has been vastly overstated, and that a judicial discretion to vary and redistribute property rights should not be regarded as undemocratic.

My dissertation concluded that the current English legal orthodoxy towards constructive trust doctrine is therefore misguided. Indeed courts throughout the common law world have achieved a sufficient degree of certainty in their application of the remedial constructive trust. In addition, I suggested that despite several landmark judgments in the House of Lords and Supreme Court in this area over the past decade, the judges in these cases missed key opportunities to change the course of the law.

In an area of such tremendous social importance, the fact the law remains wedded to the proposition that only individuals who have provided cash flow and capital attract property rights in the family home can only be regarded as wrong. Hence, it is high time the judiciary recognised another road does legitimately exist, and traversing it would not erase the foundation of property rights.