Common Intention in Family Law

Constructive Trusts for Unmarried Couples

There is a presumption that ‘equity follows the law.’

In other words, it is presumed that the legal owner of a property is also the beneficial owner, meaning the non-legal owner has no beneficial interest. To prove that a non-legal owner has a beneficial interest, the non-legal owner needs to prove that there was a common intention between the couple that the legal title does not follow the beneficial interest.

Finding a Common Intention

The court will try to ascertain whether the claimant has proved that there was a common intention that they would have a beneficial ownership despite the fact they do not have legal ownership.

This can be found by express common intention, for example if it had been discussed expressly.

It can also be inferred from conduct, for example if the non-legal owner makes contributions to mortgage payments or renovating the property.

Key Elements of a Constructive Trust

There are three key elements necessary to establish a constructive trust:

• there must have been a common intention between the parties that the non-legal owner would have a particular interest in the property
• there must be evidence of express discussions giving rise to the common intention
• the joint owner claiming the share must have acted to her/his detriment by relying on the intention that they would both have a beneficial interest.

Factors Considered by the Court

The court will have to look at numerous factors to determine whether the parties intended for their beneficial interests to not follow their legal interests.

Stack v Dowden made it clear that ‘context is everything.’ It is not just financial factors that will be considered when determining the parties true intentions. The following list of factors may be considered:

1. Any advice or discussions at the time of the transfer which cast light upon the parties’ intentions then;
2. The purpose for which the home was acquired;
3. The nature of the parties’ relationship;
4. Whether the parties had children for whom they both had responsibility to provide a home;
5. How the purchase was financed, both initially and subsequently;
6. How the parties arranged their finances, whether separately or together or a bit of both;
7. How the parties discharged the outgoings on the property and their other household expenses;
8. The parties’ individual characters and personalities may also be a factor in deciding where their true intentions lay.

This list is not exhaustive. Courts are very open to considering a wide range of factors when determining if there was a common intention for the legal ownership not to follow the beneficial ownership.