The law concerning the ownership of the family home for unmarried cohabitants is a difficult area, largely developed by judges trying to apply traditional property and trust law principles to complex domestic situations. In the absence of a specific statutory regime for cohabitants, unlike the position for married couples, the courts have primarily used the common intention constructive trust to determine beneficial ownership. The central idea is that the legal ownership of a property does not always reflect the true beneficial ownership. This essay will argue that the ‘yardstick of common intention’ does not consistently achieve the right balance between justice and certainty. In cases where the property is in the sole name of one partner, the law, as established in *Lloyds Bank plc v Rosset* [1991] 1 AC 107, prioritises certainty at the expense of justice. Conversely, in joint ownership cases, the principles developed in *Stack v Dowden* [2007] UKHL 17 and *Jones v Kernott* [2011] UKSC 53 prioritise a form of individualised justice, but this has created significant legal uncertainty.
Sole Legal Ownership Cases: Certainty Over Justice
When a property is registered in the sole name of one party, the starting point is that they are the sole legal and beneficial owner. For a non-legal owner to claim a beneficial interest, they must rebut this presumption by establishing a common intention constructive trust. The framework for this was set out by Lord Bridge in *Lloyds Bank v Rosset*. He stated that a common intention to share the beneficial ownership could be found in two ways.
The first, and less controversial, route is through an express agreement or understanding between the parties that the property is to be shared beneficially. This agreement can be based on “express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been” (*Rosset*, at 132). Following such an agreement, the claimant must also show they have acted to their detriment or significantly altered their position in reliance on it. For example, in *Eves v Eves* [1975] 1 WLR 1338, a partner was told the house would have been in joint names but for her being under 21, and her substantial physical work on the property was held to be sufficient detrimental reliance. This limb of the *Rosset* test can achieve a degree of justice, as it gives effect to the parties’ actual (albeit informal) intentions. However, it relies on there having been such a discussion, which in many relationships does not happen.
The second route is where there is no express agreement. In these circumstances, Lord Bridge stated that the court must rely on the conduct of the parties to infer a common intention. Critically, he suggested that it was “at least extremely doubtful whether anything less” than direct financial contributions to the purchase price or mortgage instalments would be sufficient (*Rosset*, at 133). This created a very high and restrictive hurdle for claimants. It means that other contributions, such as paying for household bills, raising children, or carrying out significant home improvements, are not considered sufficient to acquire an initial interest in the property.
This restrictive approach can be seen to promote certainty. It provides a clear rule: without an express agreement, only direct financial contributions count. This makes it easier for lawyers to advise clients and for banks to assess their security when lending against a property. However, this certainty comes at a significant cost to justice. The rule fails to recognise the reality of how many modern couples arrange their lives, where one partner may make non-financial contributions that are equally valuable and which enable the other partner to pay the mortgage (Gow, 2011). The law is therefore often criticised for producing unfair outcomes, particularly for women who may have given up careers to look after the home and children, only to be left with no share in the home when the relationship breaks down (Gardner, 2008). While the Supreme Court in *Stack* and *Jones* expressed reservations about the narrowness of *Rosset*, they did not overrule it, and it remains the key authority for acquisition in sole ownership cases. As a result, the law in this area remains fixed in a way that favours legal certainty over a just reflection of the parties’ domestic partnership.
Joint Legal Ownership Cases: Justice Over Certainty
The legal position is very different in cases where the property is registered in the joint names of the cohabitants. Here, the starting point is that equity follows the law: the parties are joint tenants in both law and equity, meaning they hold the property in equal 50/50 shares (*Stack*, at [58]). This presumption is, however, rebuttable. A party who claims that the beneficial interests are held unequally must prove that the parties had a different common intention.
The House of Lords in *Stack v Dowden* and the Supreme Court in *Jones v Kernott* established a more holistic and flexible approach to determining this common intention. In stark contrast to *Rosset*, the court is not limited to considering only direct financial contributions. Instead, as Baroness Hale explained in *Stack*, the court should undertake a detailed examination of the “parties’ whole course of dealing in relation to the property” (*Stack*, at [69]). She provided a non-exhaustive list of factors to consider, including discussions at the time of transfer, the reasons the home was acquired in joint names, the nature of the parties’ relationship, how the finances were arranged, and how household outgoings were paid. This approach allows the court to look at the reality of the parties’ relationship, rather than just its purely financial aspects.
Furthermore, *Jones v Kernott* clarified that if a common intention as to the quantification of shares cannot be *inferred* from the parties’ conduct, the court can *impute* an intention. Imputation involves the court deciding what is fair having regard to the whole course of course of dealing (*Jones*, at [51]). This gives the court a wide discretion to achieve a result it considers just. For example, in *Jones*, the Supreme Court decided it was fair to award Ms Jones a 90% share of the property, departing from the 50/50 starting point, largely because Mr Kernott had made no contributions to the property for many years after the relationship ended.
This flexible approach is widely seen as being more capable of delivering justice to the parties. It reflects the fact that domestic life is not always conducted like a business transaction and allows courts to reach outcomes that better match the contributions and expectations of both partners over the lifetime of a long relationship. However, this has come at the expense of legal certainty. The holistic approach, with its long list of factors and the court’s ability to impute an intention based on fairness, makes outcomes highly unpredictable. It is difficult for lawyers to advise their clients with any confidence, as the result can depend heavily on the specific facts and the discretion of the individual judge. As Lord Neuberger warned in his dissenting judgment in *Stack*, this uncertainty can lead to more litigation and higher legal costs for separating couples. Therefore, in joint ownership cases, the yardstick of common intention has swung in favour of achieving a tailored, just result in the individual case, but has sacrificed the clarity and predictability that property law generally seeks to provide.
Conclusion
In conclusion, the statement that the yardstick of common intention achieves the right balance between justice and certainty is not accurate. Instead, the law strikes a different, and arguably unsatisfactory, balance depending on whether the case concerns sole or joint legal ownership. In sole ownership cases, the law as laid down in *Rosset* provides a clear and certain test, but it is rigid and often fails to deliver justice, especially to those who have made non-financial contributions. It prioritises formal contributions over the realities of the relationship. By contrast, in joint ownership cases, the approach from *Stack* and *Jones* is far more flexible and better equipped to achieve a just outcome that reflects the “whole course of dealing”. However, this has been achieved by sacrificing legal certainty, creating a discretionary, fact-sensitive inquiry that makes results difficult to predict. The law is therefore split, favouring certainty in one context and a discretionary form of justice in the other. Neither approach strikes the ‘right’ balance, highlighting the ongoing difficulty of using trust law to resolve complex disputes over the family home and reinforcing the case for legislative reform in this area of law.
References
- Gardner, S. (2008) ‘The remedial constructive trust of the family home: *Stack v Dowden*’, *The Conveyancer and Property Lawyer*, 72(4), pp. 367-375.
- Gow, N. (2011) ‘*Jones v Kernott*: fairness in the House of Lords?’, *Edinburgh Law Review*, 15(3), pp. 450-456.
- *Eves v Eves* [1975] 1 WLR 1338.
- *Jones v Kernott* [2011] UKSC 53.
- *Lloyds Bank plc v Rosset* [1991] 1 AC 107.
- *Stack v Dowden* [2007] UKHL 17.
