Quantifying Interests Under Resulting Trusts
| Author | Patrick O'Hagan |
| DOI | http://doi.org/10.1111/1468-2230.00090 |
| Published date | 01 May 1997 |
| Date | 01 May 1997 |
Quantifying Interests Under Resulting Trusts
Patrick O’Hagan*
Only on divorce or legal separation is a court empowered to redistribute the assets
of a married couple.
1
Similar powers are not available upon the break-up of
relationships of cohabitees. Even in the case of married couples, the redistributive
powers do not apply when a claim is made by a third party creditor against the
legal title holder. It has been clear since the decision of the House of Lords in
Pettitt vPettitt,
2
over a quarter of a century ago, that in such cases a dissatisfied
non-legal title holder, whether a spouse or cohabitee, must have recourse to
ordinary property principles. The doctrine of family assets flourished for a period
in the 1950s and 1960s, allowing a beneficial share to a non-legal title-holding
spouse who had made a substantial contribution, directly or indirectly, to the
purchase of property.
3
Thus, in Fribance vFribance,
4
Denning LJ was able to state
that ‘the whole of the [spouses’] resources were expended for their joint benefit —
either in food and clothes and living expenses for which there was nothing to see or
in the house and furniture which are family assets — and the product should belong
to them jointly. It belongs to them in equal shares.’ Couples in sexual relationships
rarely give thought to proprietary rights before they separate and the doctrine of
family assets was premised on an imputation of what they would have agreed had
they considered the matter. Community of ownership based on this fictitious intent
was rejected by the House of Lords in Pettitt vPettitt,
5
and again in Gissing v
Gissing.
6
The leading modern case is the 1990 decision of the House of Lords in
Lloyds Bank vRosset,
7
which follows the trend favouring orthodoxy.
As fictitious intention is unacceptable,
8
ordinary property principles require the
non-legal title holder to prove the existence of a real agreement or ‘common
intention’ as to the extent, if any, of his beneficial ownership. Common intention
may be manifested by oral representations of the legal title holder.
9
In the absence
The Modern Law Review Limited 1997 (MLR 60:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.420
*The Queen’s University of Belfast.
1 Matrimonial Causes Act 1973, ss 23, 24.
2 [1970] AC 777, [1969] 2 WLR 966.
3 The doctrine of family assets had its origins in an interpretation of s 17 of the Married Women’s
Property Act 1882, which provided that courts were empowered to hear and resolve disputes as to the
possession and ownership of matrimonial property, and to make such order as they ‘thought fit.’ See
in particular the judgment of Romer LJ in Rimmer vRimmer [1953] 1 QB 63, 76.
4 [1957] 1 WLR 384, 387.
5 [1970] AC 777, [1969] WLR 966.
6 [1971] AC 886, [1970] 3 WLR 255.
7 [1991] AC 107, [1990] 2 WLR 867.
8 ‘The court cannot devise agreements which the parties never made. The court cannot ascribe
intentions which the parties in fact never had’ per Lord Morris of Borth-y-Gest in Gissing vGissing
[1971] AC 886, 898.
9Lloyds Bank plc vRosset [1991] AC 107, 133. Such express agreement will be enforced in the case of
land in the absence of formalities if the claimant has acted to his detriment in reliance on the
representation or bargain. In such cases, detriment need not entail a direct monetary contribution to
the purchase of the property, although the type of behaviour which qualifies as detriment remains
unhappily uncertain. See Gray, Elements of Land Law (London: Butterworths, 2nd ed, 1993) 425–
432; Moffat, Trusts Law Text and Materials (London: Butterworths, 2nd ed, 1994) 453–456.
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