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C.S.L.R.

ALL'S FAIR IN LOVE AND LAW:

AN ANALYSIS OF THE COMMON INTENTION CONSTRUCTIVE TRUST

ANDREw DYS()N

The article analyses the application of the common intention constructive trust to disputes
invohving the family home, as the law stands after Stack v. Dowden and the numerous recent
cases interpreting that decision. It is suggested that instances of actual unfairness are rarer
than often thought, because of the judiciarys willingness to manipulate the formal rules of
the trust in order to avoid injustice. Criticism should instead be focused on the hidden costs
of allowing fairness to trump formality: a hole in the integrity of the law, and the spiralling
costs of litigation which flow from the complexity of the doctrine. It is concluded that a
statutory scheme is the only way foisrwar fir the law of cohabitation.

I. INTRODUCTION

Created by the House of Lords across trwo separate hearings, 1 the common intention constructive trust
has since been tackled twice more by the House of Lords, 2 countless times by the Court of Appeal, and
by the Law Commission in an effort spanning over a decade. Unlike the broad redistributive powers
granted to courts upon divorce, 4 there is currently no statutory regime governing the financial conse-
quences of separation for unmarried cohabitants. The common intention constructive trust expanded
to fill the vacutim. Despite the doctrine's increasing social relevance? it has remained an elusive and
complex topic. The only aspect of consensus anongst academics, judges and law-reformers alike is that
in its current form, the common intention constructive trust remains far from satisfactory.'
Critics of the common intention constructive trust often lay particular emphasis on the risk of injus-
tice posed to litigants by the current legal position. This article approaches the doctrine from a slightly
different perspective. It will be suggested tlsat in substance (though rarely in form),' the judiciary seeks
a fair outcome above all else, and in particular above legal certainty. Consequently, examples of obvious

*Queens' College, University of Cambridge. My thanks ro Brian Sloan for his challegin and consrucriie comments on several
earlier drafts. 1he usual disclaimer applies.

1Pet - /R [1970] A.C. 777 (hereafrer "1n v.1P- '); G.'n -v. Gii o[1971] A.C. 886 (hereafter "Gkisiv. C;is.ni ').
I1a ,r B. plc v. Rao et [1)) 1] ] A.C. 107 (hereiter "I y" vI.R.
B 3'); Sari . Dowd,,, [2 ] KHL 17, [20-7]
831 (hereafter "anrk v. Dawr/').
Low Commission, "C ab irrioi: [he Financial Conseqiiences of Relationship Breakdowi" (Law Com No. 307, (i 7182,
2007). Ihe area was:- prsrrrammed fAorrefrm in 1995.
NfMrrimoiiial Caises Arr I 97, 1Part11
'here his been apprei able growth in the mi tiber offainilies in the LK over rhe last decade, from 16.5 milji in 1996 to 17.1
million iT 20. 1owever, rhe proporrioi of married couple t Tmilies has decreased during that period from 76 per cenr in 1996
to 71 per rea 06, while cohabiinig families hove increased from 9 per cenr ro 14 per cent: S. Smallwood ai B. Wilson,
Di
Focu On I 2)07 stion
(London 2007).
See, e.g, Br v. Burns [1984] Ch. 317; idland Bank pc v. Coake [1995] 4 All F.R. 562; S. Gardner, "Rerhiinking Family
Propert" (1993) 109 L.R. 263; Lowi Commission, "SbariiTg Homes: A Discussion Paper" (Low Cor No. 278, 2002).
W
7 See, e.g, J. Fekelaar,
TA omani's Place A Caiffict Berween Iaw airi Social Vilues" [1987] Conv. 93.
For Tn exiaple :f recourse to fairess which has beenjustified by legal formula, see Of'/ry v Hi coc [2005] Far. 211.
[20081 Cambrige Student Law Review

unfairncss to litigants are thankfully rare. Instead, the focts of criticism presented here is the subversion
of legal principle required to safeguard fairness tinder the framework of the common intention construc-
tive trust. Three legal fictions will be identified to justi this proposition mid to demonstrate the main
pitfalls of the current approach.15
Further, it will be suggcsted that the awkward balacing act between certainty and fairness rcpre-
sents a fundamental flaw in the common intention constructive trust, which is wi holly unsuited to the
family context. By attempting to combine strict property law rules with the "more variable realities of
contemporary social relationships",11 itexacerbates a tension between two incompatible legal objectives.
judicial manipulation is necessary in order to accommodate fairness within an essentially proprietary
doctrine, but generates a huge amount of legal waste. Each new decision adds another layer of complex-
ity to the law, with the result that j udicial intervention, far from providing clarification, in fact acts as a

litigation generator from which only lawyers profit. This is a significant step in the argument, because
it pre-empts the suggestion that if fair outcomes arc largely being achievcd already there is no need to
correct the status quo.
It will be concluded that ultimately the manipulation of the common intention constructne trust
is not a phenomenon for which judges themselves should be held accountable. As long as the doctrine
remains, they face an impossible choice: subvert formal rules and generate uncertainy in the law, or
sanction unfairness in the cases before them. It is unsurprising, given the essentially familial nature of
cohabitation disputes, that the judiciary almost Uniformly settles fir the former in preference to the
latter. Only Parliamentary intervention can remedy the underlying dilemma, by replacing the general
legal principles applicable to the law of trusts with a set of rules tailor-made to the problems of cohabi-
tation.
Tlie Law Commission's most recent programme of reform implicitly recognised such a conclusion
with their proposal for a statutory scheme which would effectively sideline the common intention con-
structive trust altogether. 2 Despite some of the criticisms levelled at the scheme," itis to be regretted
that through a lack of political will for change, it was indefinitely shelved by the executive in March
2008.14 Tle implication that the status quo remains satisfactory may be defensible when looked at
purely from the perspective of legal outcome, but it ignores the gaping hole left in the integrity and
coherence of the law itself.

II. A FRANKENSTEIN DOCTRINE

The common intention constructive trust is a "Frankenstein doctrine" of judicial creation." It has
been described as "the product of an unhappy marriage between resulting trust and estoppel principles,

9 Nonetheless itisconceded rhaVwhen unfoirness does occur, itispVrticularIy unpalaVable. See, e.g.,
Bun. v.Burns"[1984] Ch.
317.
i0eeFortI ,"'Iihee LeoalFictions",below.
a. Dunn , '171eEbb and Flow of Trusts and Estoppel" (2004) 15 King's College 1a1J
A 36.
4l
Law Corn No.307 (2007).
Hughes, M. D1vis and L.jocklin, "'Come Iive With Me and Be My Love' A Consideration of the 2007 Law
13See, e.g, [D.
Commission Proposs on Cohabittion BreAkdown" [2008] Conv.197.
14MiliStl ofJItisice,
"Response to
Vaper on Cohbitaion and Relationship Breakdown", 6 March 2008,availoble athrtp://'w5wI
. KVshice.g 1ov.ohk/news/nnoVVncemenito6V3OSh I4.h]m.
1C. Rotherhom, "1he Properrv Rights of Un married Cohobirees: 'Ihe Case fo r Refo rm"'[2004] Corm 2658,
272.
C.S.L.R. ALs Fairin Love and Law

arranged to compensate for the narrow view taken by the English courts of the traditional resulting
trust". 16 Curiously for such a significant development in the law of trusts, there was not even a Chancery
lawyer on the House of Lords panel that crystalised the modern statement of the doctrine in Gishng v.
Gissing.17 Nevertheless, it now forms the primary mechanism through which cohabitation disputes are
resolved, having superseded the resulting trust from which it originated."
Legal principle dictates that the doctrine operates as part of the "ordinary law" on the informal cre-
ation of interests in land. " It enables a non-legal owner to claim a share in the family home through the
declaration of a beneficial interest in their favour. The court articulates its function as "merely to declare
that such a trust has arisen in the past", 2 and emphatically denies any role in providing a discretion-
ary remedy. Lord Neuberger has described the applicable legal principles as an amalgam of "contract,
land and equity" .2 1 In his categorisation, recognition for the role of family law seems conspicuous by
its absence.
However, behind the legal formalities, judicial practice indicates a preoccupation with achieving
fairness on the facts of each case. Whilst rejecting any formal role for assessments based on fairness,22 in
substance judges often seem to concilde a fair allocation of property based on a wide range of factors
(much as they do explicitly in the case of divorce), 3 and then reason backwards to declare existing shares
consistent with their findings. 24 This manipulation of legal principle leaves subsequent decision-makers
25
attempting to "reconcile the irreconcilable".
Stack x. Dowoden now adds the latest layer of House of Lords authority. 6 Academic commentary on
the decision has been largely critical,17 since its "clarification" of the law seems rather hollow in the light
of equivocal judicial interpretations by the lower courts. s The fact that it has been so difficult to pin
down to what extent the law is different at all under Stack,"' itself provides some justification for these
criticisms. It is necessary to Outline what changes the House of Lords probably did make in Stack, and
how these have been interpreted in subsequent decisions, before turning to each of the more specific
criticisms in turn.

J. Mee, "Trusts of the Fanily Home 'Ihe Irish Fxperiene' [1993] Con. 359, 369.
17D. Hayron, "ConsrurivrueIrosts of Homes A Bold Ap proh" (1993) 109 L.Q.R. -85-48
I 11beresulting trust has been deemed no longer on q pr o t l of analysis in the si-2trimonil context. See Slach v.
Doi on [2007] KHL 17, [31] (Lord Walker) ind [60] (Bar ness Hale), e(. [123] (Lord NeoFberger, dissenting). 'Ihis has sub-
sequenrly been allr-e by the Priv Council, see Abbtt v. Abbot [2007] JKPC 53, [200,] I F'.R. 1]451, [4] (Boroness Hole).
Sta v. 1)ou,,+en 2 [C007]RHI 1, [44] (Baroness Hale).
It let,
e 1,s & ioeerC
0 v. l/vl t8on LB1 [1996] A.C. 669, 714F (L ord Browne 75lkinson).
2 v Dou,,dJ, [ FKHL
I7 17, [101] (Lord Neibeyer).
2 1a, [2007] KI 17, [61] (Baroness Hale).
23M rimom1a Causes Act 1973, s. 25.
24 Some senior judges hove been quire open about this. See g, k cLv Doden [2007] F KHI 17, [12] (Lord Hope): "aking
a broad view of the marter therefore, I aogree tht the order rhar rhe Courr of Appeal made povides the fairest result rhar con be
achieved in the circumstances".
2 M. IIhompson, "Constructive Trusrs, Fsroppel ond the Fam1ily Home" [2004] Conv. 496, 507.
26 [2007]2 A.C. 432.
27See, g., M. I)ixon, Ihe Never-Ending Story Co-Ownership Afrer Stark v. Du'e" [2007] Cony. 456; A. Clohero lnd 1.
a
Fox "Proving ' 1rst ofo Shared Home" (2007) 66 C.L.J. 5 17; (f a more mixed response by 13 P wlowski, "Beneficial Frtirle-
minent N Ioger DoingJsrice" [20071] Conv. 354, 363.
28 See, e.gM,Akoe v R/ichie [2007] EWMtisc 5 (EVICC), [2007] WT.L.R. 1505.
29See, e.g., S. Gardnei., "Family Pr pers
rIydo' (2008) 124 L R. 422.
[20081 Cambridge Student Law Review

A. 7he Law after Stack

Taken at face value, after Stack v. Dowden Much will turn on whether the property subject to dispute
was held in sole or joint legal ownership. If the property was held in the sole name of the defendant,
the claimant prima facie has no equitable interest." Conversely, if the propern, was held in the joint
names of both defendant and claimant, they prima facie hold their equitable shares equally in a ratio
of 50:50. 1 This reflects the starting point that "equit follows the law", 3' and will amoeunt to a strong
presumption which may be displaced only in "very Unusual" circumstances .33
If a claimant wishes to challenge the presumption (either to establish the existence of a share where
sole legal ownership indicates that there is none, or to increase the 50% share indicated by joint legal
ownership), they will have to demonstrate that there was a common intention between the parties to
do so. The "common intention" may be express, implied, or imputed 34 To find an implied or imputed
common intention, the court will draw upon "the whole course of dealing bet'wccn the parties", invo-
ing "all conduct which throws light on what shares were intended"3 5 A non-exhaustive list of the factors
whieh might be sufficient to displace the presumption is provided by Baroness Hale in paragraph 69 of
the courts judgment.
On this view, Stack v. Dowden represents a departure from the previous case law in three key respects.
First, unlike in Oxley v. Hiscock,- the course of dealing" enquiry is intended to establish the true
chole
extent of common intention, rather than any abstract notion of fairness.' On its face this has reduced
the discretion available to judges at the quantification stage of determining beneficial entitlement.3
Second, whereas there was some confusion in previous cases regarding whether it would be permissible
to impute (as opposed to merely infer)39 a common intention to generate a common intention construc-
tive trust, 4 in Stack it was expressly declared that it was .41 Third, despite the ease with which it might
be thought that a common intention could be imputed, the presumption created in Stack that equity
follows the law was clearly intended to discourage litigants from challenging the share indicated by their
legal title. 42 That is to say, the decision was intended to quell litigation rather than encourage it.

B Post-Stack Case Law

An early indication of the potential difficulties in interpreting Stack v. Dowden emerged in the County

3' Stck v. Doden [2007] UKHL 17, [56].

3 [bid, [2007] LKHI 17, [56] and [58].
1 , [2007] UKHI 17, [54].
331 1oJ, [2007] 7KHI 17, [69].
34 , [2007] UKHI 17, [60] (Baroness Hale) and [33] (1ord Walker), cf [125] (Lord Neuberger, dissenting).
3' [2007] UKHIL 17, [61] (Baroness Hale), quoting fIrom Low Com No. 278 (2002) otparo. [4.27].
1kd.,
36 O(x/r v. Hisock [2005] From.211.
37 Broness H/Ie was quick to emphosise this point explicitly iark v. Dod [2007 1UKH L 17, [61].
3- See Prt I1(), "Sepration of Ouantifcation and Acquisction", below.
3 See note 105 below.
See, e.g., J. Montgomer, "AQuestion o tention?" [1987] Conv. 16, 26.
Stck v. Do/cden [2007 UKHL 17, [//0] /Icoss -31e) : nd [33] (Lord 'Wlker), cf [125] (Lord N obocgec
dissenting).
1). Sevi ccnd J. Freem n, "5ckc v. )nni 1),ctcm inin Property Rights on Separcion of I nied Coh / icants" (2007) 5
Prive Clienc Business 366, 371.
C.S.L.R. ALs Fairin Love and Law

Court case of Adekunle v. Ritchiei3 The first problem facing the court was whether it would be appropri-
ate to apply Stack at all, because -whereas Baroness Hale had framed her comments in terms of a "cohab-
44
itng couphe", in Adekun/e the disputc concerned a relationship betveen mother and Son. Judge John
Behrens QC concluded that in principle Stack could apply to familial relationships of a non-marital na-
ture. He decided that although "Baroncss Hale primarily had in mind cohabiting couples living together
in either a platonic or sexual relationship ", she did not limit her approach to these cases." This opinion
has subsequently been confirmed by the Court of Appeal in Laskarv. Laskar.6
Having found that Stack should apply, the maxim that "equity follows the law" indicated that as
legal joint tcnant (and hence by presumption also joint tenant in equity), the son should be entitled to
recover the entirety of the property through survivorship following the death of his mother. However,
this was a difficult prospcct to countcnance, since his financial contributions to the property had been
minimal, 4' and granting surviorship would involve denying his nine siblings the share they would
otherwise have obtained through their mother's will." After confessing that he did not find the answer
straightforward," the judge eventually decided that despite the relationship falling in principle within
Stack, it Was sufficicntly "unusual" to justix a departure from the presumption. 5' Accordingly the son
was denied sole beneficial entitlement, and instead was awarded a one third share using the "holistic"
approach. 51 Ironically, considering that it was the very absence of significant financial contribution
which seemed to have led to unease with the result obtained by the presumption in the first place, this
holistic approach offered a slightly larger share than the 25% which could have been justified by the
son- mortgage payments alone. 5
Tlc approach in Adekunle thercfore seems to have given with one hand, by choosing to apply the
presumption, and taken with the other, by later rebutting it. At both stages the judge used the type of
relationship betwueen the parties to justify his findings. The judge himself appeared uneasy with the
"subjectivity and uncertainty of the task" which Stack had left him. 5 If Stack v Dowden was intended
to clarih thc law on cohabitation by providing a single point of reference and step by step approach
to deciding future cases, unfortunately its message does not appear to have filtered down to the lower
courts.
The architects of Stack itself have interpreted the decision with similar equisOcality Baroness Hale
had the opportunit to explain her approach in Stack, whcn delivering judgment on behalf of the Ju-
dicial Committee of the Priv Council in Abbott v Abbott5' a case concerning beneficial entitlement

13Adle v. Rchie [20071] W.T. R. 1505 (lie rcafter "Adeunles RI

14, q v. )odn ['1007] UKHI 17, [40].
Ae ulev. Rii1ie [20071] \V1..R. 1505, [65].
In this case, Iord Neuberger (sitting vemporrily in the Cou t of Appe) did distinginsh Scr v Dond but not on the bAsis
of the type of relationship, which wAs Aopin one of mother and child. Istead, is concluded thiv the properv' hAd been pur chased
as an invesment rother hAn as a fimily home, nd so wis nor in th dumesticcosumer covvtext" ihi ress HAle's scheme
id
envisiged, Lask iv Iia/sh [2008] F(WA Civ 347, [2008] Fao. Iaws 638, [17] (oird Neuberger).
A7 rmonth:
-60 Ade v/ Rchie [20071 W.T.L.R. 1505, [58].
Ale, evv Rchie [20071] WE..R. 1505, [66].
/b [2007] W.1LR. 1505, [9].
1 [2007s .I.I L.R.
[1, 1505, [67].
S[bi,[2007] W.T1.1 .R. 1505, [68].
5l l/i, [2007 W. '1I.R. 1505, [68f.
53[bg [2007[ W.T.L2I.R. 1505, [68].
54Abbour v Ahhou, [2007] U1KPC 53 (her:eofter "Abboit v. Abbou '").
[20081 Cambridge Student Law Review

to a matrimonial home in Antigua. Due to the absence of any property adjustment legislation in that
jurisdiction, the general legal principles in Stack applied." Despite the property being held in the sole
legal nane of the husband, in Abbott the claimant wife was awarded a beneficial intrest arising by com-
mon intention constructive trust, largely on the basis that the defendant had admitted one. " Only the
quantification of the beneficial interest was disputed before the Privy Council. However, in Baroness
Hale's speech, there was a distinct lack of clarity in her obiter dicta comments regarding the extent of
the "holistic" approach favoured tinder Stack.57 It remains unclear whether such an enquiry should in
principle apply to the acquisition of a beneficial interest, or merely to its quantification once established.
If the former, a whole range of factors could become admissible to justify the existence of a bencficial
interest even where the property in question was held in the sole legal name of the defendant. Baroness
Hale's equivocality on this point does not sit well with the emphatic nature in which she stated the basic
presumption in Stack. 5' At the very least, the issue appears to be more clouded than her simple maxim
that "equity follows the law" gives credit. It has been suggested that this presents a rather "do as w say,
not as we do" approach to the interpretation of Stack at the highest level.,"
Tliat said, to date the Court of Appeal does seem to have adhered to the orthodox exposition of Stack
with a great degree of obedience. In Fowler v. Barron, the Court of Appeal applied the strong presump-
tion that equit, follows the law to award the claimant a half share in property of which she was joint le-
gal owner." In doing so, it overruled the judge at first instance, who had denied the claimant a beneficial
interest on the basis that she had made no financial contribution to the property. 1 Under the old law,
the judge's initial assessment wxould have been correct - without a financial contribution no resulting
trust could arise, mad, according to the test laid out in Loydis Bank v. Rosset,12 there was no conduct from
which a common intention constructive trust could be inferred. However, in light of Stack v. Dowden,
the Court of Appeal held that lie had taken insufficient account of the parties' legal ownership of the
property as anx indication of their beneficial shares.13 Fowler is a good example of where the presumption
created by Baroness Hale in Stack has had a tangible influence on the outcome of proceedings.
In the context of sole legal ownership, the strength of the Stack presumption has been affirmed by the
Court of Appeal with similar certainty. In James v. Thomas, the appellant failed to establish a beneficial
interest since she could not show any exceptional conduct suffiCiClit to rebut the presumption raised by
the defendant's status as holder of sole legal title.1 Contributions made by Ms. James to the business
which funded the mortgage ois the property were not sufficienit evidence from which to infer a common
intention, since on the facts of the case they were 'wholly explicable on other grounds".65 Tlsis narrow
conception of inferred common intention, originally rooted in the decision of L/y),ds Bank v. Rosset, has

5 Abbouxv. Abbou [2007]]KP( 53, [2].

6 Ii, [2007] UKPC 53, [19].
57 Ibd,[2007] U KPC 53, [121-19].
5 R. Lee, "ack v. Dowdn: A Sequel" (2008) 124 L.QR. 209, 211.
R. George, "rck v. Dowdce Do As W, Say Not As We, Do?" (2008) 30 Journal of Soci9al Wclfore nd Fo mily ILowx
49.
ovwler"v aon [08] EWCA ()v 377, [2008] 2 PC.R. 1 (hereafter " ow'r v. Barron"), [46].
Fowle'v. aon [08] EWCA ()v 377, [13].
T1qC,Bankv. Riosi [1991] 1 A.C. 107, 133.
SFowlerxv. "o [2{)08] EWCA iv ''377, [33].
4am(,v. Jlscor [2007] EWCA Civ 121 , [2008] 1 TE .R. 1598 (hereafter "aries v. 7hora'), [38].
iv
'Jann, 'fho ov [2007] EW(A (iv 1212, [27].
C.S.L.R. ALs Fairin Love and Law

been subsequently bolstered by the Court of Appeal in Morris v.Morris." There the court similarly held
that contributions to a farm business run jointly by the claimant and defcndant were not sufficient to
displace the presumption of sole legal mid beneficdal ownership.6
To this extent the Court of Appeal so far appears to have taken Stack v.Dotnden at face Value. The
starting point that equin, follows the law will indeed only be displaced in "very unusual" cases. Injames
v. 7homas the stringent adherence to the presumption, which denied the claimant any share at all, may
have gixen rise to some unfairness - in evidence Mr.Thomas himself had admitted that it Would be
"fair" for his partner to have an interest." Perversely, the robust approach of the Court of Appeal may
not have been the outcome which Baroness Hale really intended, since she stated obiter dicta in Stack
that she disapproved of the narrow extent to which inferred common intention was restricted under
Lloyde Bank v Rosset.69 The Court of Appeal may therefore have gone too far in their application of the
Stack presumption. Itwill be interesting to see whether this nexvfiund rigidity will withstand scrutiny if
the mattr returns to be debated in the House of Lords.170

III. THREE LEGAL FICTIONS

Three aspects of the common intention constructive trust illustrate that at the root of the doctrine, sev-
eral problems remain after Stack v.Dowden.;t The trust is premised upon a series of fictions. These cre-
ate the illusion of legal certainty, but on closer inspection reveal extensive scope for judicial discretion.
The approach is arguably successful in mitigating the risk of unfairness that a truly rigid trust Would
otherwise pose. However, the nuances required to preserve discretion destroy the legal integrity of the
doctrine and are ultimately unsustainable, since each new layer of complexity adds to the legal costs
borne by both claimant and defendant. It is necessary to address each of these fictions in turn.

A. Common Intention

The concept of common intention follows from a "recognisable individualist platform", under which
the court looks to the parties' own thinking as part of the search for a quasi-contract or bargain which
will determine the existence (and sometimes the extent) of their respective shares. It appeals to a sense of
"libertarian individualism", preserving the autonomy of the parties to decide for themselxes how their
property is to be allocated] 3 Accepted at face Value, the principles to be applied "arc those which the
parties have accepted themselxes" and consequently ensure legal certainty since the proprietary interests

l'forris v. Alion- [2008] EWCA Iv257, [2008] F/rn. Low 521 (hereafter 'n
"Mormis A i,0/").
o7 V.
/l/0,rrit [2008] EWCA Gv 257, [23].
/Allon-i
"Iwas ... srruck by [Mr Tornas] concession, made expressly inignornce ofthe legal position, and very much contrar ro his
interest,r rhr h ft y virre of her contribution tothe business ond rhework done on the Propety, the Claimiont was entitled
roIn /I/rmst", I v. Iho r [2008] EWCA v 257, [37].
Sta v.Dow/den ['0 H 17, [6 3](Baroness Hole).
....
70SpecificIly if p/ese /red with o sole legI ownership cise, where the focrors relevontro esrbl ishin/g beneficial
interesr wi I have
to be debated dirctl
7 Fur ther elements of fiction haveOso been suggested: see
A. Lawson, "1he hings WeIo forLove: l)etrimenrol Reliance inthe
Family Home" (1996) 16 L.S. 218.
'Or/ /10/ /1eroe
0 aoe
I/TO/ p. 282
73J. Eekela ,"' Wonans Iloce A Conflict Between Lw and Social Vales"[1987] Cony 93, 10 1. He rejects
astrictly
indi-
opprooch os"on overtly
viduI/ist puntive stance owards extrmrital relarionships".
[20081 Cambridge Student Law Review

arc ascertainable at any point in time simply by reference to what the parties have agreed.- '
As a matter of reality there are several problems with this impression. First, the concept is fundamen-
tally Unsuited to the family context. Secondl, the doctrines application relies upon a Manipulation of
findings of fact stemming from the influence of considerations which would appear unjustified by the
formal extent of the rules. The courts are dependent upon the air of certainty that common intention
provides in order to justify its -wide-ranging consequences for third parties. However, to adhere to the
concept rigidly Would entail a manifest deial ofj ustice to the parties to the relationship itself. Th1e result
is an uneasy compromise which is intellectually bankrupt both in terms of social context and judicial
application.

I. bUnsuitabi/ityfor social context

The assumption that cohabitants will bargain for the division of their assets upon separation does not
correspond with the trust's familial application. Social reality will usually precude Such ar arrangement
because people may regard as offensive or sispicious any attempt by their partner to moot the conse-
quences of break-up whilst the relationship is going well. 5 It is generally accepted that when the parties
start living together, they do so without any thought of how property should be divided upon termi-
nation of the relationship. ;1 For the vast majoritv of cohabitants, the conceptual basis of the common
intention constructive trust is inherently unreflective of the way in wxhich they organise their lives.
Nominally, the term "common intention" suggests that the courts are required to identify a point
in the relationship where the intentions of both parties have coincided on the specific issue of shares
in property. It has been suggested that this is inherently unlikely since it is the very absence of a shared
view which causes the parties to resort to litigation in the first place.! It is possible that parties may have
held a shared view which later diverged before the end of the relationship, but it seems unlikely that this
can account for every one of the huge number of cases going before the courts. The view that each indi-
vidual has a crystallised intention during the course of the relationship is similarly fallible./ A persons
intention as to how property should be divided, even whilst the relationship is ongoing, mas well be
contingent on a number of fLture factors; for instance whether the relationship would end amicably or
whether the parties would have any independent source of income at the time of separation. Baroness
Hale expressly denied the relevance of the notion of contingent intention in order to reject an) prospec-
7
tive adjustment of the trust, but to this extent her view fails to comport with social reality. 1
The courts have attempted to circumvent these criticisms by responding that the parties' intentions
can be read objectively through the inference which "a reasonable man Would draw from their words
or conduct".' This analogy with contractual bargaining is problematic. Unlike a contractual offer and
acceptance, the common intention constructive treist lacks the additional legal safeguards provided by

74J. Montgomery, "AQuestion of Intention?" [1987] Conv. 16, 17.

T[his
psychologiao phenomenon, known as "signalling", iscommonly accepred in the context of pre nuptial agreements. See
S. Tevnore, "Symposium: The Iegal Construction of Norms Nornis s Stipplemenrs" (2000) 86 Vii i is Lw Review 2 021.
See g, F' Riniker, "'ihe Ficion of Comin Inliiiienrioi AliT Detrimie nr [1998] C(on. 22,'207; ing M. "1hompson, Iod
a etberwo, 3rd ed. (Oxford 2006), p. 95.
ixon. "Resulring and Constructive Trusrs itIo and: The Mist Descends nd Rises" [2005] Conc 79, 87.
)XOn
SFor n exposition ofthis view, see Stark v. Doz.tJen [2007] UKHL 17, [62] (Baroness Hole).
Stck v. Donen [2007] UKHL 17, [62].
(i.
Gio v. G.sti0 [1971] A.C. 886, 906 (TLord Diplock).
C.S.L.R. All Fairin Love and Law

the doctrines of consideration mad intention to create legal relations. Whereas in contract the conduct
from which objective intention is inferred usually derives from a commercially accepted routine," there
is110 such template for behaviour inthe family context. It isalso questionable whether su an inference
could survive directly contrary evidence of subjective intention arising in the course of cross examina-
tion. John Mcc attempts to support the integrity of common intention by distinguishing betwcen the
standards necessary for claimant and defendant.82 However, even if such an analysis can reconcile the
true practice of the courts, its complexity renders it so far removed from the typical model of cohabita-
tion that all sense of reality is lost.83

2. Judicialapplication

Common intention has variously been described as a "myth", a "phantom" and a "fabrication" in aca-
demic commentar 14 These criticisms refer to the fictitious manner in which common intention is
established, often by a manipulation of flimsy evidence to sustain a far reaching conclusion as to the
parties' beneficial shares.
Common intention is used by the court in three respects. First, the court will give effect to common
intention where there is evidence of an "agreement, arrangement or understanding" that the property
should be shared benefially.! Where this agreement takes the form of signed writing it will satisfy the
formality requirements of the Law of Property Act 1925, s.53(l)(b) and is not part of the common
intcntion constructive trust at all." However, where it falls short of these rcquirements the agreement
may still take effect if an express discussion can be established. Crucially, the court will allow itself to be
persuaded by such evidence "however imperfectly remembered and however imprecise their terms"."
Despite the apparent certainty suggcstd by the term "agreement", the court is afforded discretion to
extrapolate wcak evidence to satisfy a meritorious case.
Tlc so-called "excuses cases" demonstrate the stretching of express discussions to circumvent the
common intention requirement in search of what is fair. In Eves v. Eves,"i and later inGrantv.Edwards, 9
the defendants had offered their partners deceptive reasons for denying them legal ownership inthe
family home. Intuitively, this would seem to be cast-iron evidence that the defendant did not intend
his partner to acquirt an interest. Simon Gardncr highlights that "excuses arc softened ways of saying
Ino', not concealed ways of saying 'yes'".' If I give an excuse for rejecting an invitation to a dull party,
Ido not thereby share a common intention with the host that I will attend.91 Quite the contrar, both
objectively and subjectively I have expressed an intntion not to go, albeit Ihave retained the veil that

Fr instnce the exchange of money and goods ara supermarker checkout.

J. Mee, Joi nr Ownership, Subjective Intention And the Common Inrention C(oinsri:crive ITost"
[2007] Cosny I4,1921.
3 ekel, no
Ste 73 above, Stp. 99.
4 hompson, note 25 above, t p. 505; K.Gray nd S.F rGray, I nflandaw,4th ed. (Cambridge2004), p. 938; Gardner,
I ote 6 above, atp. 297.
Js
Llyd's Rimset [1991] 1 A.C. 107,132 (Lord Bridge).
" rooimanv
(a/lan [1986] 1 All E.R. 311, 314.
'7[qF,0S. Rosset [1991] 1 A.C. 107,132 (Lord Bridge).
Eves v.bv,," [1975] 1W.I.R. 1338.
Grano v. a'lwad [ 1986] Ch. 638.
Gardner note 6 above, atp. 282.
9C
9I 5'i,arp.265.
[20081 Cambrige Student Law Review

I would like to if possible.

Nevertheless, in each case the Court of Appeal concluded that the excuse was evidence of a common
intention to share the property beneficiall. Whilst it isconceded that the statement of excusC May well
have constituted a representation that the defendant would convey legal title to the claimant when pos-
siblc, sufficient to a create a reliance claim in proprietary estoppel (though notably this would not have
resulted in the automatic declaration of a proprietary right),") the evidence on which common intention
was found bore no relation to its doctrinal basis. Far from making a certain declaration of an existing
trust, the Court of Appeal seem to have decided upon a "fair" outcome and reasoned backwards to fit
the exidence. It is possible to argue in the light of the post-Stack case law,9 that the Court of Appeal
may now adopt a stricter search for intention which would no longer accommodate the cxcuses cases.
In cases where proprietary estoppel is available to fill the gap, such a dexelopment should be welcomed
as a more honest approach to common intention. Where it cannot, the court is likely to face a stark
choice b t ween the intgrit) of the doctrine, and the risk of Unfairness to litigants deceixed by an Cexuse
to forego their beneficial entitlements."
Secondl, the court may infer common intention from conduct. For the purposes of acquiring an
interest, the only relevant conduct will be a direct contribution to the purchase price of the property.9
The House of Lords in Stack v. Dowaden envisaged that this limit was likely to be subject to judicial
extension in the near future,96 but the Court of Appeal has so far resisted any such development. 9' For
the purposes of quantifing an interest, common intention may be inferred from almost any conduct
pertaining to the "whole course of dealings" between the parties in relation to the property9' Indeed, in
quantification, financial contributions have been shunned as the primary mode of conduct from which
intention should be inferred2 9
It is highly questionable what light the wide range of other considerations enunciated in paragraph
69 of Stack really throw upon the parties' intentions. Many of the factors relevant in finding an inference
from conduct (such as reasons why a home was acquired in joint names, or how the parties arranged
their household expenditures) will often be more referable to the parties' mutual love and affcction
rather than their understanding of their legal implications.""' Further, there is no reliable framework for
their application. Several factors are listed in Stack v.Dowaden, but: no closed category is provided;...

5ryestoppel
9'Proprier was nor ple ded ineither cAse.
93See, e.g., Fouh,4r v. ]Barro,, [2008] EVICA (Civ377; jae,.:v. 7homas [2007] EVICA (Civ 12 12; Alorr~f v. fforris [2008] EWCA
Civ 257.
94 There hAs been on sneasy relIaionship between proprietary estoppel And the common intenrion constructive trust. Some com
mentAtors hoe suggested An assim ilarion of the two doctrines (see, e9g., I). HAYFon, "Equitable Rights of Cohabirees" [1990]
Con. 370), but this was doubred in Stark v Dnode [2007] KHI 7, [37] (Lord Wilker). Nevertheless, Lord Neuberger hos
expressly recogn ised rhat the doctrines may potentiallyoverlap on the sane sertofi cts: Stark v.Do,de [2007] UKHIL 17, [128]
(Lord Neuberger).
9sy s.ydF
Roset [1991] 1 A.C. 107, 133 (Lord Bridge).
9'Stackv Do',,Ien [2007 UKHL 17, [26] (Iord Walker) and [63] (Baroness Hole).
97See, e.g., Jou/er v. Barro [2008] EViCA 1iv 377; Ja s,." v. Ihoma/s [2007] EVICA 1iv 12 12;Alorr v. fforris [2008] FWCA
Civ 257.
9-Stac'v DosJen [20071UKHL 17, [61i] (Baroness Hle), citing Lw Corn No. 278 (2002), atpir. [4.27].
"The arirhmiierical calculation of low much wAs paid by each is oso likely to be less imporrtnt": Siack v. )ovin [2007] F KHL
17, [69](BAroness HoAle).
See fuirrher Hasron, note 94 above, atp. 374.
irk s. Dolden [2007] UKHL 17, [70] (Boaroness Hole).
C.S.L.R. All', Fair in Love and Law

the precise ambit of each consideration varies according to which of their Lordships' judgments arc
preferred;11 2 and no indication is given of the relative weight to be attached.13 Subsequenrjudges axe left
with ai Unarticulated discretion to pick aid choose which items of evidence to recognise, Such that the
whole process of inference "almost inevitably collapses back into something approaching an assessment
14
of fair outtcomc.
Thirdly, following Stack v. Dowden, it is now settled that the Court may also impute a common
intention.105 This process entitles the court to attribute thoughts which, on the evidence, it is accepted
that the parties did not possess. Inference, by contrast, always reasons from the premise that the parties
had considered the common intention attributed to them, but simply did not articulate it cxpressly
Imputed intention had been rejected on principle in earlier cases for precisely the reason that it wrongly
entitled the court to take its own view of how property should be allocated. In Petutt v. Pettitt, Lord
Diplock recognised that:

[W]hen the court imputCs to parties an intention upon a matter to which they in fact gave
no thought[:] 'In their place there rises the figure of the fair and reasonable aman. And the
spokesman of the fair and reasonable man, who represents after all no more than the an-
thropomorphic conception of justice, is and must be the court itself'."'

In practice, imputation therefore blends seanlessly into a discretionary assessment of fairness.' It has
been suggested that given the liberal manner in which common intention can already be inferred, this
represents only a small practical extension to the courts' powcrs.i Nevertheless, this recent develop-
ment underlines the fiction of common intention as the guiding principle behind the declaration of
beneficial interests.

B. Separat on ofAcquisition and Quantification

The declaration of a beneficial interest is determined by a two-stage test wvhich separates the acquisition
of a common intention constructive trust from its quantification. Although the relvance of intention
has iio been restored to the second stage by Stack v. Dowden, 1 ' the result is nevertheless a far more
"broad brush approach" to quantum than was originally envisaged by the strictures of the test laid down
in Lloyds Bank v. Rosset.11 This dichotom, created by the Court of Appeal in Midland Bank v. Cooke"'

I'- riack v Dozwd(az [2007] UKH, 17. Cmpae for instince, the relevance atributed to monu aI labour in the judgments of Lord
Walker, at pArA. [36], Baroness HIe, a par. [70], and lord Neuibe-ger, aI plr. [139].
,Sarckv Dowden [2007] UKHl 17, [19] (1Tord Neuberger).
Gray and Gray note 84 above, t p. 9)4.
See, e,,- W Swodling, "Ihe Common intention Construcrive Trus in the House of I ords: An Opportni Nissed" (2007)
123 L.QR. 511, 516; S. Bridge, "Cohabitation: Why Legislotive Reform Is Necessary" (2007) 37 Fmily Low 911, 911.
Ie 'i, v. it'i t [1970] A.C. 777,825 (Lord Diplock), citing Davis Contrao v. Treham (I [95] 95 A.C. 696,728 (Vis-
counr Radcliffe).
I Lord Neuberge r correctly assiniilared the concepts of imputation and fairness in his dissenting Judgment in Siack v. Dot.b
[2007] KHI 17, [145].
ih8Ithompson, note 25 above, at p.498, Nontgomer note 74 above, at p. 26.
1c' ,arkv Dowden [2007] UKHv, 17, [61] (Boroness Hole).
Drkev. WVhpp [1996] 1 E.R. 826, 830 (Peter Gibson L.J.).
I biuand BankP\ Cooke [k1995] 4 A] E.R. 562 (hereafrer " dlandBank v Cooke").
[20081 Cambridge Student Law Review

and crystallised in Oxiy v. Hiscock, ' replaces the traditional resulting trust principles of quantification
with the power to engage in a wider enquiry as to the parties' "whole course of dealings" in relation to
the property.'' 3

1. Pre MidlandBank v. Cooke

Before the Court of Appeals intervention in Midland Bank v. Cooke, common intention played a uni-
form role in both acquisition and quantification. The test for acquisition was that established by Lord
Bridge in Lloyds Bank v. Rosset, which limited the court to express discussions and inference from di-
rect contributions to purchase price."' Quantification was primarily addressed by precisely the same
search for intention. Only in default of any evidence as to what shares were specifically intended would
quantum be determined by the separate test of resulting trust, allocating shares in proportion to any
financial contributions to the property.' Consequentls, the court was left with little scope to consider
non-financial factors, which were irrelevant both under the primary test of intention defined by Rosset,
and under the resulting trust method in default.
This inflexibility led some judges to adopt a disingenuous application of Rosset itself, to ensure a
greater defacto discretion within the single stage test. In Hannnondv.Mitchell, decided less than one year
after Rosset, Waite J. held that a beneficial interest had been established under the category of express
discussion despite his admission that the words constituting the common intention were "not directed
with any precision as to proprietary interests"."' It appears that in substance his finding derived from
the claimant's "commercial activities based on the bungalow" that she shared with the defendant; an
irrelevant contribution under the test expounded by Lord Bridge. / Considerations of this kind were
revealing of the courts' predisposition towards a broader enquiry but failed to establish a principled
basis on which to disapply Rosset.

2. Effect of Midland Bank and O.ley

The decisions of the Court of Appeal in MlidlandBank v. Cooke and Oslyx v Hiscock epitonise the judi-
cial attempt to maximise discretion in the face of a seemingly certain proprietary test. It was concluded
that Rosset applied only to acquisition. 1s Quantification was to be decided separately; not by reference
to express intention or financial contribution, but according to what was "fair having regard to the
whole of course of dealing between [the parties] in relation to the propert'."' The decisions amounted
to the innovation of a two-stage test. Tie proprietary approach was retained in relation to the first stage,
but instead of proceeding on the same basis in quantification, acquisition of a share became no more

Oxley v. IIncock [2005] Fain. 211 (hereafter "Ox(y v iscoch").

Ibid., [2005] Fari. 211, [69] (Chadwick L.J.).
Lloydr Bank v.Roset [1991] 1 A.C. 107, 133 (Lord Bridge).
5 ,iote Dejbe [1992] 2 EL.R. 388,393 (Dillon L.J.).
hJO',iifiiindv 'Aitchell [1992] All E.R. 109, 119 (Wite I.).
iiopare Ilaimmond v. 1cMinl [1992] All E.R. 109, 119 (\VAte 1.) wit h LIoy/ Bank v. Ri0ase [1991] 1A.C. 133 (Lord
Bridge).
Ji lMidBank v. Cooke [1995]4 All E.R. 562, 926 ('AWaie J.).
Cx ley v. Iicock [2005] Fai. 211, [69] (Chadwick L. .).
C.S.L.R. All' Fair inLove and Law

than a "springboard to allow courts to address in a discretionary way what those shares should be".120
A certain amount of discretion in deciding individual cases is of course inevitable, but a systemically
discretionary approach to the declaration of proprietary rights seems inconguoIIus with the very basis
of property law 121

Thc discretionary approach has been defended on the basis that the court mast already have crossed
the prior hurdle of common intention at the acquisition stage. However, from a proprietary perspec-
tive there can be no merit in such a distinction. If common intention is really the organising principle
of the common intention constructive trust, then it makes no sense that an intention inferred from a
small contribution may trigger a large share, but that the absence of common intention (inferred or
otherwise), precludes a claim altogether despite the merits of factors which would be relevant at the
12
second stage. 1
The conclusion from this incoherence must be that the two stages had different conceptual bases.
The acquisition stage espoused inRosset adopted agenuinely proprietary testvwhich limited the inference
of common intention to its proper sphere. By contrast, the quantification stage relied upon an open
discretion which proceeded from the courts' perspective of fairness rather than the parties' intentions
as to ownership.

3. Stack .Dowden and beyond

Since OxleV, the House of Lords have attempted to reign in the anbit of the second stage to restore
its proprietary appearance. In Stack v. Dowden, Baroness Hale rejected any overt reference to fairness,
holding that although the test was still to examine the whole course of dealings, it should be conducted
with a view to discerning the parties' intentions rather than the courts' ownsense of justice.1 Since
the factors for consideration remain substantially the same if not broader, 5 this re-labelling amounts
to playing with words. It confirms the courts' awareness of the need to preserve a mask of cirtainty,
compromising its freedom to decide what is "fair".
Recent case law has indicated the initial steps inan erosion of the acquisition test, which Would
ftrrher reduce the common intention constructive trusts' proprietary base by weakening the hurdle
required to gain access to the discretionary second stage. Rosset has been cogently criticisid in academic
commentary, not least for its exclusion of domestic contributions from the scope of inferred intention.121
Lord Bridge's test was accordingly doubted by Lord Walker and Baroness Hale inStack v. Dowden, 12
and then again by a very similar panel sitting as Privy Council in Abbott v Abbott.' It seems likely that

SThompson, note 25 above, or p. 501.

For academic criticism to this
effect, see R Birks, "Proprietary Rights es Remedies" in . Birks (ed.), II7 v qf[1,YIilify,
Vol. 2 (Oxford 1994), p.218; and foro classic example of judicial unease atthe use of discretion in properrs low, see Coo v.
Foatain(167() 3 Swnnst 585,592 (Lord Norringham ,C).
See, e.g,vee, note 8' ibove, tp. '9; (roy and (roy note 84 above, or p.905.
See fuorrher Rotherham, nore 15obove, o p.277.
Sir c Docden [2007] UKH 17, [61] (Boroness Hole).
Compire the factors Iistedin 5ack v.DIou'den [2007] U KHI 17, [69] and Oxer v.Hicnock [2005] Farn.
211, [69].
See, e.g.,Pawlowski, note 27 above, atp.361; A. Rlron, "Co Owners, rhe Transfer,rhe Intent end 5ack" (2007) 37 Family
Loaw 713,713.
r7ciark
s. Dovden [2007] UKH 17, [26] (lord Walker) and [63] (Peroness Hole).
Abbo v. Abbo' [2007] UKPC 53, [6] (Baroness Hile).
[20081 Cambridge Student Law Review

the House of Lords will introduce more flexibility when the need arises, although such a development
has so far been resisted by the Court of Appeal in Janesv. 7homas and Morris v. Morris.' Ifa relaxation
of the Rosset test does iiaterialise, it Should be welcomed as a step forward for fairness, but Would seal
the firate of any proprietary illusion as part of the two-stage test. 13

C Presumption that Equity Follows the Law

In Stack v Dowoden, the House of Lords unearthed the familiar principle that "equity follows the law"
and transposed it to the common intention constructive trust. 1 The maxim was used to justify the
presumption that in cases of joint legal ownership both parties would acquire beneficial interests, held
in "beneficial joint tenaney". 13 The burden in such cases Would be on the claimant to show that the
parties did not intend a 50:50 split.103
'The majoriry in Stack v. Dowdenv er adamant that the presumption should be a very difficult one to
discharge."' The House of Lords created the impression of a predictable and uniform approach to the
3 5
common intention constructive truist that would apply in all but the most exceptional circumstances.
However, the sincerity of this presumption is open to question. Itsapplication was immediately rec-
ognised as malleable,1 6 and despite some shoring tip by the Court of Appeal in largely straightforward
13
cases, 13/ on the margins it is evident that there remains considerable scope for discretion. 1
Thle underlying basis of the presumption is sounLd. It is an entirely reasonable reflection of the layper-
sons presumption that where both parties' names are present on the legal title, both intend some share
of the beneficial interest. Although such a presumption could provide an appropriate starting point, it
was recognised that it would never be infallible. It has been empirically demonstrated that the legal sig-
nificance tif obtaining title injoint nanes might be misunderstood by the parties, 131 and Baroness Hale
was correct to acknowledge this in her judgment. 14 Indeed, in Stac Donden itself, Ms. Dowden had
given evideice that [i]tjust happened that both our names wcre put forward to the agents as purchasers
and the purchase went through in joint names".11 The defendant's evidence inthe recent case of Powler
v.Barron provides a more recent example. 112 A willingness to displace the presumption where the parties

v 7ooaa [2007] FWCA Giv 1212;

xae.s v [2008] EWCA (Gv257.
.rlMon-isr1
'3' For a discussion of the proble ms of acmmodari n o -fi no ncialc ornri bution s wirh is the existing
fr.] i ework of the cornm on
intenrion constructive trust, see Parr IV,"A Fund menral Flxw", belowx
&iark- Dowlden [2007] UKHT, 17, [109] (1,ord
131 Neuberger).
l3-
Ibid, [2007] UKHI, 17, [56] (Boroness Hale). 'Ihislefr u nanswered the question ofxwhtoexactly was ment 1by"beeficiso
l oiinr
renlsncy" was ir reolly joinr
renanosr was irenancy incommon with equal shares
3 Ibid.,[2007] KHI 17, [68] (Baroness Hole).
b4 [207] KHI 17, [5](ILord
Ibid., Hope), [14] (1Lord
Walker) and [69] (Baroness Hole).
lb,
Iid, [2007] 1KHI 17, [69] (Baroness Hole).
13 See, e.,,M. Dixon, "'Ie Never-Endin, Storr Co-Ownership Afrer ia/rk x. Do'vd(o" [2007] Conv.456, 456; A. Cloherri
and ).Fox "Proving a Trust of Shared Home" (2007) 6( C.L.J. 517, 519.
137See, e.g,Eoulerv.1)0a0 [20118] ECA (iv 377.
131See, e.g,Aodkunle v.1 [07] e.TII.R. 1505.
1 1)Doglas,J.Pa rce& H 'odward, "A Failure of Irust:Resolving Property Disputes on Cohabrtion Breakdown" (2007)
CardiffIaw School Reserch Psors No. 1, tpara. [5.101].
4So xak
Dosden [2W] L,kHl 17, [(7] (Bsroness Hole).
14 iarck v.Dot.d(I
n [2006] 1 R-E.R. 254, [33](CA),Chadwick I.J. quoring from the dendoant's witness statement doted 23
January 2004.
14-1he defendant argued thsrhis intention in 5cquiring the property injoinr legaln mes wos merely thatthe climant would
C.S.L.R. All', Fair inLove and Law

in fact intended different shares was therefore entirely appropriate and consistent with a proprietary test.
The objection to the presumption is in its application. The House of Lords have created a test which
on its face Secures a high degree of certainty; Baroness Hale stated that itwould only be displaced in
,very unusual" circumstances.1 4 However, this conceals a series of exceptions that engulf the general
rule in the search for fairness. When considering evidence that the parties' intentions differ from the
presumption, courts are invited to take account of an open-ended list of factors that amount to "the
property lawyers' equivalent of Pandora's Box".''' Two problems in particular have emerged. First, the
relationship between the presumption and the exceptions is profoundly opaque and likely to generate
rather than quell litigation. Such is the scope for confusion that immediately following the decision in
Stack v. Dowden, two broadsheet newspapers reported entirely opposing accounts of its effect on hom-
cowners. 145
Second, beneath the presumptions' impression of certainty, the court is left free to operate its discre-
tion whether to displace the 50:50 split. Two main factors guided the majority to rebut the presumption
in Stack v. Dowden itself.146 The first was that one of the parties had "contributed far more to the acquisi-
tion" than the other.'' As Lord Neuberger has pointed out extra judicially, this is scarcely a convincing
reason, because "[il fthe presumption of equality is to be rebutted because the contributions are signifi-
cantly different, it is a pretty useless presumption: the only time you need it, it isn't there'. 14'he second
reason given in Stack, that the parties kept their assets separate from one another, does not seem like a
particularly unusual way for a couple to manage their financial affairs in the present day. Together these
factors lead to the impression that for the purposes of displacing the presumption, the House of Lords
14
effectively equated "unusual" with "unfair'. ,

IV. A FUNDAMENTAL FLAW

It was argued in the previous section that the judges have manipulated the proprietary basis of the
common intention constructive trust in order to retain some discretion to decide what is "fair". If this
is so, it is important to establish at the level of principle why a doctrine based upon the declaration of
beneficial interests in land can never accommodate fairness. It will be argued that the normative merits
of a cohabitation claim are not inherently linked to property at all. Consequentl} the attempt to resolve
disputes through an exclusively proprietary mechanism is so fundamentally flawed that any attempt at
incremental adj ustment Will fail to address the underlying problem.
Under a common intention constructive trust, the court's power to intervene stems from the parties'
relationship with land. A proprietary interest is declared on the basis of the parties' common intention
as to ownership of the shared home. Even the holistic approach to assessing the parties' intentions is

acquire the propero by survivorship ifhe predeceised her: Foler Barto [2008] FWCA (iv377, [6](Arden LJ.).
14'Siack Doden [2007] UKH[l 17, [69] (Baironess Hole).
14,\. DixO n, "Edrr's Cse notes" [2007 Cov.352, 353.
14'Com'pre: Gibb, "Unmarried Couples Come Closer roWinning Legol Divorce Rights" ie Times, 26 April 2007 and J.
Rozenberg "Ruling Denies Cohabirors Rights of Spouses" 1liI)fiy lolegroph, 27 April 2007.
14 Siark. Dowden
)v [2007] UKHI 17, [87-91] (Bo roness Hole).
147Sinac.v Doden [2007] UKH[ H 17, [87] (Broness Hole).
1 Lord Neuberger, "The Conspirarors, thea Mn,the Bi of Rights and I Bit Abour the Lovers",Chancery Br Associoion
Anntj II Lecture, 10Morch 2008, rpr. [15].
14,Dixon, nore 136 bove, or p.459-460.
[20081 Cambridge Student Law Review

limited to their whole course of dealings "inrelation to the property"."" The doctrine is fundamentally
premised upon a direct link between the parties' intentions and the rights thereby declared, which vest
specifically in the property that was subject to that intention.
The home is likely to be the single largest asset involved in a cohabitation dispute, and accordingly
the common intention constructive trust affords the court power to allocate a significant proportion of
the parties' total wealth. However, the normative basis for declaring a beneficial interest is not inherently
linked to land, but rather to extraneous considerations which apply no more directly to the shared home
than they do to any of the parties' other assets."'
An exposition of the factors which might be of normative significance ina cohabitation dispute illus-
trates the gap between fairness and formality In the absence of express intention the only conduct cur-
rently considered relevant to the acquisition of a beneficial interest is a direct contribution to purchase
price, from which intention may be inferred."' However, the external logic of such a limitation has
frequently been questioned," 3 and the House of Lords have demonstrated their propensity to expand
the range of relevant conduct to include other factors."' Whilst perfectly justified as a matter of policy,
the common intention constructive trust is fundamentally unsuited to accommodating these types of
claim.
It has frequently been suggested that indirect financial contributions (for instance, contributions to
household expenses which release the legal owners income to pay the mortgage) should quailfy to trig-
ge acquisition.' Otherwise, the availability of a claim may depend upon "mere accidents of fortune,
being the arbitrary allocation of financial responsibility as between the parties"."6 It would seem unfaii
to deny a claimant the opportunity to recover assets from theii relationship merely by virtue of the par-
ties' internal accounting. However, under the common intention constructive trust the normative basis
for intervention is the link between the parties' conduct and the property in which the right is claimed.
If this is so, that link would be severely stretched by the recognition of contributions which relate to the
property only through the concept of opportunity cost.
A small incremental step may similarly justify recognition of the parties' domestic contributions.
These may include cooking, cleaning, child-rearing, or any other non-financial contribution to the
parties' shared living arrangements. It has been suggested that to distinguish these factors from direct
financial contributions would unfairly discriminate against the female partner in a relationship, who
is most likely to take the role of home-maker."' Quite apart fiom its presumed economic value, there
are good normative reasons for recognising the social utility of domestic contributions to the joint en-
terprise entailed in the parties' relationship.15' However, these factors would be entirely devoid of any
connection to the property in which the right issought. In practice the woman no more rears children
with an intention of acquiring an interest in the home than she does to acquire an interest in her part-
ner's car or pension fund.

(Baroness Hole).
sSarckDolden [2007] UKHTl 17, [61]
See fuirrher Mee, noe 16 bove, or p.421.
IbiZds B'ahv Ros.se [1991] 1A.C. 107, 133 (Lord Bridge).
See, e.g, Rotherham, note 15 ibove, or p.274.
1 iark
/4 Do!en [2007] UKHl 17, [26] (Iord Walker).
11,See, e.g, Pawlowski, note 27 ove, or p.361.
15Le Foe v. Le Foe [2001] 2 EL.R. 970, [4] (Ms'
Q c)
A.Barlow And C.Lind, "AMarter of Irust: ]The
117 Allocotion of Property Rights in the Family Home" (1999) 19 LS..468,471.
18See fuirrher,J. MIes "Property Iaw v.Fomily ILow: Resolving the Problems of Family Property' (2003) 23 L.S. 624, 641.
C.S.L.R. All', Fair in Love and Law

Thc overwhelming ncccssiwt of rccognising indirect and domestic contributions reveal a fundamental
inadequacy in the common intention constructive trust. Although these types of claim arc normatively
meritorious, they cannot be accommodated within the stated doctrinal basis of the trust. 1he Courts'
inclination to broaden the range of qualifying contributions illustrates that the common intention
constructive trust is not linked to land at all. Itis uscd as the vehicle for resolving cohabitation disputes
merely because it provides access to a large proportion of the parties' assets, and because the law ofequity
15
is able to provide an ostensibly credible legal ancestr on which to hinge intrvetion. 1
The common intention constructixe trust will always leave a gap betwcen the formal test and the
result which the court considers "fair". The Law Commission was quite clear that even careful parlia-
mentary drafting would not be sufficient to accommodate fairness as part of a proprietary framework:
t is quite simply not possible to devise a statuox scheme for the ascertainment and quantification
[i]
of beneficial interests in the shared home which can operate fairly and evenly across the diversity of
domestic circLmstancs which arc now to be encountered"1'
Under the current doctrine, the court is left with a stark choice: face unfairness by rejecting meritori-
ous claims, or manipulat the proprietary test to incorporate normatixcly worthy considerations at the
expense of ccrtainty. In light of this fundamental impasse, attempts to amend the existing doctrine in
a way that could accommodate both ccrtain, and fairness must now be rccognised as futilc. Only a
statutory response can accommodate the normative requirements of fairness within a framework that is
accessible to litigants and can be assessed with some degree of predictability.

V. CONCLUSION

It has been argued that the common intention constructive trist has lost all sense of legal integrity in
its attempt to accommodate fairness. The trust tempts manipulation because its proprietary origins arc
unsuited to the context in which it operates. Therc is some danger in casting property and fanily law as
two completely separate legal orders;16' however it is right to recognise that the lax of cohabitation sits
far toward the family end of a single spectrum. If the challenge is to put "sustainable doctrinal clothing
on the practical status quo ",162 a system which adopts the declaration of beneficial interests as its centr-
piece will always be left wanting.
In the face of such fundamental flaws, statutory reform seems the only plausible option. The irrec-
oncilable tension bctxcen ccrtainty and fairness is so deeply set that legislation will necessarily be the
product of compromise, and a "least worst option" is perhaps more realistic than a definitive solution.
Nevertheless, the starting point must be parliamentary intervention and an open recognition that the
common intention constructive trust cannot be correctd by ad hoc tinkering. Itis unfortunate that
the initiatixe for reform must ultimately come from the executive rather than those who deal with the
cases on a daily basis, since it was a failure of political rather than legal nerve which hamstrung the Law
Commission's most recent proposals. 1 3
Until reform can be implemented,it is inevitable that judges xwill continue to follow a path of fairness

Rorherhom, note 15 obove, p.286.

Sow Corn No. 278 (2002), or par .[1.31].
noe 16 obove,ot p.418.
Xlfee,
Ga(rdner, 6 bove, orp. 29.
nmore
16' inisty of Jtisrce
statementl
mote14 above.
[20081 Cambrige Student Law Review

whether sanctioned openly by the law or not. They should not be condemned for doing so. In the con-
text of cohabiting relationships, the search for fairness of outcome is right to trLmp the legal certainty
demanded by the trust's formal strictures. Perhaps the only faut of the judges has been todo so sur-
reptitiously, thereby preserving the political impression that all is well, and arguably stifling the impctus
for change."' In the meantime, fairness and formality will continue to do batte in the Courtroom, the
5
spiralling costs too often paid for out of the "shrinking sale proceeds of the parties' former home".1'

J64
(If Lord Neu be rger, who was resistant reform ond insread openIy fIAvoured
to udicial inrervcnrion by the Iegislature:
Sark v.
Dosven [2007] IKHL 17, [105].
16Cl oherr snd Fox, nore 136 obove, or p.518.