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 No Sympathy to Women and Children
in Securing Their Family Home

Gina Heung'
In the real world unmarried couples rarely enter into express
agreements regarding what should happen to property when
their relationship ends. The law has developed in a number of
different directions throughout the past fifty years with the
courts attempting to find an appropriate test to apply to co-
habitation relationship breakdown. As cohabitation becomes
more common due to property price inflation or so, the need
for a more flexible approach in response to changing social
and economic conditions has become pressing. Unfortu-
nately, the application of the common intention constructive
trust to family home disputes, as the law stands after certain
landmark cases, remains unsettled and far from satisfactory.
The problems raised in this area are worthy of attention, in
particular to those women playing the role of a housewife or
a mother. Often they are non-legal owners of the property and
yet, there is little legal sympathy to their non-financial contri-
butions to the property. This harshness unfairly undermines
women's values and places them at a disadvantaged position
in securing their interests of the property. Children have be-
come one of the victims in the sale of a family home under
Section 15 of the Trusts of Land and Appointment of Trustees
Act (TOLATA) 1996. It is questionable whether section 15
has abdicated too much responsibility to the judiciary in de-
termining the order of sale of a family home. The potential
consequences of diminishing the legal protection of wife and
children will tip the scale towards the interests of creditors;

1
LLB, Sussex Law School, University of Sussex.
Legal Issues Journal6(1) January 2018

the unpredictability and inappropriate balance from the de-

velopment of case law between co-owners' life and the inter-
ests of creditors will inevitably bring about either human right
challenges on the rights to private and family life of involved
wife and children, or commercial and financial repercussions
on creditors to absorb the adverse effects of court rulings on
their interests.

Keywords: common intention constructive trust, indirect financial contri-

bution, gender inequality, TOLATA 1996, children, human rights

Background of the Common Intention Constructive Trust

and the Trusts of Land and Appointment of Trustees Act
(TOLATA) 1996

A significantly increasing number of cohabitation, including those with

children, has become the norm for the past thirty years in Great Britain
(hereinafter the UK). There are currently 3.3 million couple families co-
habiting outside marriage, doubling from 1.5 million in 2016 - being the
fastest growing family type since 1996.2 Often, this type of couples pur-
chase real property together in ignorance of their legal rights. Cohabiting
relationships are always more likely to break up than traditional marriages
in the same period of time. More litigation has arisen out of the break-
down of relationships between co-owners.. Yet, there is currently no on-
going consideration of the statutory regime governing the financial conse-
quences of separation for unmarried cohabitants despite a proposal in pa-
per no.307, 4 put forward by the Law Commission in 2007, which intended
to set out a clear test that could clear uncertainties and the subsequent lack
of uniformity between court judgements.
In the wake of such an increase in cohabitation the common intention
constructive trust has been developed to fill the vacuum to resolve disputes

2
Daniel Horscroft, 'Families And Households In The UK: 2016' (Office for
National Statistics 2017).
3
Alissa Goodman and Ellen Greaves, 'Cohabitation, Marriage And Relationship
Stability' (Economic and Social Research Council 2017).
4,Cohabitation: The Financial Consequences of Relationship Breakdown' (The
Law Commission 2007).
62
 No Sympathy to Women and Children in Securing Their Family Home

over the family home between unmarried cohabitants. Cohabitants rarely

make an express agreement as to their respective rights5 and most co-own-
ership has been created informally, which is problematic. The common
case is that the wife would get nothing upon the breakdown of her rela-
tionship with her husband if title was only in his sole name. The historic
position prioritised the written division of property rights over financial
contribution, which triggers a gender inequality issue - where women's
rights and values are undermined. Recently, the law has moved forwards
a situation in which the wife's non-financial contributions are recognised.
Yet, the lack of clarity and inconsistent approaches indicated by courts are
still unlikely to fully secure women's rights.
Indeed, this is a very factual issue in the UK. About three million un-
married people in England and Wales co-own land and a large number of
them have children since 2012.6 In many cases, purchasers of the land will
be financed partly by a mortgage and need to sell their property in order
to pay off the debt to their creditors under the Trusts of Land and Appoint-
ment of Trustees Act (TOLATA) 1996 which has now governed all co-
owned land. If your name is not on the Title Deeds and your ex partner
owns the property in his or her sole name, factors including purchasing
purposes, having children, and an establishment of a financial interest in
the property would be needed in order to apply for an order of sale under
section 14 of the TOLATA. The court then has a wide discretionary power
to determine an application by referring to section 15. However, courts
often find it difficult to balance the rights of co-owners, especially in a
situation involving children, against creditors' interests. In many cases, the
flexibility derived from different outcomes has been called into question
and called attention to the importance of children's rights.
Part I explores the development of the common intention constructive
trust throughout case law - highlights inconsistent approaches have placed
women at a disadvantage. Following by the current law stated in Stacks
and Jones, a certain degree of uncertainty with respect to the acquisition
and quantification of interest of property after a relationship breakdown
remains. Part II focuses on the applications for sale of family homes under

5
Goodman v Gallant [1986] Fam 106.
6
Jill Papworth, 'Why A Cohabitation Agreement Is Essential For Non-Married
Couples' (the Guardian, 2013)
<https://www.theguardian.com/money/2013/mar/09/cohabitation-agreement-
essential-non-married-couples> accessed 14 August 2017.
63
Legal Issues Journal6(1) January 2018

TOLATA 1996 and co-ownership disputes between a co-owner and a se-

cured creditor. Human right challenges have called for the courts to bal-
ance Article 8 of the Human Right Act 1998 with the interests of creditors
and the economy as a whole.

Part 1

1.1 Development of the Common Intention Constructive Trust

The law in this area changed fundamentally throughout the latter 20th cen-
tury. Earlier case law relied on the concept of resulting trust which has
later been perceived as inappropriate. Notably in Stacks v Dowden7 and
Jones v Kernott,8 the courts decided to forward to a more holistic approach
which takes account of the parties' common intention instead.
In the 1970s such disputes were resolved under a resulting trust ap-
proach.9 The case of Pettitt v Pettitt (1970)10 concluded that the law would
presume, from the wife's direct contribution to the purchasing price of the
property, a common intention of the parties that the legal owner would
hold on trust for herself and her cohabitee as beneficiaries, the so-called
'presumed resulting trust'. Lord Diplock, in the minority, criticised this
approach as inappropriate and recognised that when dealing with construc-
tive trusts the court should consider all the surrounding circumstances of
a relationship. 12 This suggestion is reasonable and considered by subse-
quent cases on the basis that a non-legal owner may contribute to the prop-
erty indirectly and non-financially. It seems to act against women, whose
traditional role is to act as a housewife and child carer, whilst men are
responsible for all financial expenses. They may informally or invisibly
make this deal during their relationship but the handling of their property's

7
Stack v Dowden [2007] UKHL 17.
8
Jones v Kernott [2011] UKSC 53.
9
Simone Wong, 'Constructive Trusts Over The Family Home: Lessons To Be
Learned From Other Commonwealth Jurisdictions?' (1998) 18 Legal Studies.
10
Pettitt v Pettitt [1970] AC 777.
11
Ibid para 20.
12Stack v Dowden [2007] UKHL 17 para. 19.
13
Anne Barlow and Craig Lind, 'A Matter Of Trust: The Allocation Of Rights In
The Family Home' (1999) 19 Legal Studies.
64
 No Sympathy to Women and Children in Securing Their Family Home

interest after their separation may not be as fair to a female as she would
be an indirect contributor under this orthodox approach.
This case was followed by Gissing v Gissing (1970)14, also heard in the
House of Lords, which created the possibility of looking behind the formal
arrangements between parties to uncover their informal common inten-
tion. This case did not provide for a constructive trust to be created since
it was held that furniture was not sufficient to be the same as contributing
to the purchasing price of a property, and Mrs Gissing therefore had not
gained a beneficial interest in the property. However, the House of Lords
accepted that the common intention of the parties played a crucial role in
deciding whether to grant an equitable interest in a property. This is of
great importance to cohabiting couples, as there is often no express agree-
ment, and looking to common intention is the only way to establish a fair
division of property.15
However, the case law following the decision in Gissing caused a lot of
contradictions. Cases such as Cowcher v Cowcher (1972) 16, Grant v Ed-
wards (1986) 17 and Coombers v Smith (1987) 18 all provided different in-
terpretations of common intention which caused a great deal of uncer-
tainty. For instance, in Cooke v Head (1972), a small contribution to the
mortgage repayments and significant practical contributions to the con-
struction of the property were found to amount to conduct which common
intention could be taken from. Yet in Thomas v Fuller Brown (1988)20
substantial improvement works to the property were held insufficient.

1.2 Devaluation of Women's Indirect Contributions

In Llyod's Bank v Rosset (1989)21, the reasoning in Gissing was finally

approved and further elaborated so that two categories of cases where the
non-legal owner can have a beneficial interest emerged. Lord Bridge ex-
pressed the view that the previous approaches to common intention led to

14Gissing v Gissing [1970] UKHL 3.

1sSimon Gardner, 'Rethinking Family Property' (1993) 109 Law Quarterly
Review.
16
Cowcher v Cowcher [1972] WLR 425.
17
Grantv Edwards [1986] 3 WLR 114.
18
Coombes v Smith [1986] 1 WLR 808.
19
Cooke v Head [1972] 2 All ER 38.
20
Thomas v Fuller Brown [1988] 1 FLR 237.
21Lloyds Bank v Rosset [1989] Ch 350.
65
Legal Issues Journal6(1) January 2018

too much uncertainty and so sought to tighten up the circumstances in

which the courts could find a constructive trust when property is held in
one party's sole name. 22 He then identified a two-stage test, where a con-
structive trust could only be found if: (1) there is a common intention to
share ownership; and (2) the party seeking to establish the constructive
23
trust has relied on the common intention to his or her detriment. Firstly,
it is common that sometimes it is not possible to find evidence of an ex-
press agreement to share ownership, and then one may need to be inferred
from the mutual conduct of the parties but only if direct contributions to
the purchase price of a property or mortgage payments have been made.
Lord Bridge made it very clear that 'it is at least extremely doubtful
whether anything less will do'. 24
In relation to married couples, most housewives make no such direct
contribution, even though they can often be seen as contributing indirectly
by other means. The housewife who contributes indirectly to the family
home by paying bills and housekeeping, thereby allowing her husband to
take care of the mortgage payments, would have no claim on the beneficial
interest. She can get a share only if there was an agreement at the time of
25 26
acquisition, 2 which would not be practical or workable in many cases.
This perceived injustice is what prompted the landmark decision by the
House of Lords in the case of Gissing v Gissing. Lord Reid refers to these
'common case[s]' where neither spouse gives much thought to the legal
consequences, and the law fails to deal with this reality appropriately.27
Although this high threshold, or acquisition hurdle, enables legal cer-
28
tainty, general economic inequality between men and women in society

22
Sarah Greer and Mark Pawlowski, 'Constructive Trusts And The Homemaker'
(2010) 22 The Denning Law Journal.
23Lloyds Bank v Rosset [1989] Ch 350. para 132-133.
24Lloyds Bank v Rosset [1989] Ch 350. para 132-133.
25Andrew Hayward "'Family property" and the process of "familialisation" of
property law' [2012] Child & Family Law Quarterly 284.
26Gissing v Gissing [1971] AC 886 HL para 896.
27Mark Pawlowski and James Brown, 'Joint Purchasers And The Presumption
Of Joint Beneficial Ownership - A Matter Of Informed Choice?' (2013) 27
Trusts Law International.
28Graham Battersby, 'How Not To Judge The Quantum (And Priority) Of A
Share In The Family Home - Midland Bank v Cooke And Another' (1996) 8
Child and Family Law Quarterly.
66
 No Sympathy to Women and Children in Securing Their Family Home

makes it more difficult for women to make such contributions. 29 The Ros-
set test indeed ignores the value of domestic work within the home.
Through the exclusion of domestic work and child-raising as the basis of
acquiring a beneficial interest in the family home, the Rosset test presumes
that such domestic services are expected to be provided by women and
further that they are not worthy of valuation or compensation. 0
Fortunately, the subsequent case of Bernald v Josephs (1982)31 entitled
the courts to consider the 'mathematical equity contributed to the acquisi-
tion of the property'. The essence of this balance sheet approach is that a
list of the financial contributions made by each party is drawn up by the
court and an equitable interest proportionate to the contributions will be
granted rather than applying the harsh test set out in Rosset. In Springette
v Defoe (1992)32 a wider range of contributions made throughout the
course of the relationship were taken into consideration, which is more fair
to cohabitants. It was held that a discount on the purchase price of a prop-
erty and contingent or future liabilities could be taken into account.
More factors were indicated as relevant in Midland Bank v Cooke
(1995), such as the fact that the couple intended to share everything
equally, as part of an examination of the whole course of dealings between
the parties. The family assets approach in Midland allowed bringing up
children and working full-time and part-time to pay household bills as
making contributions that would constitute the acquisition of rights in the
property, which seems to completely disregard the strict rules set out in
Rosset that a common intention found on the basis of conduct must be
directed at the mortgage repayments and financial contribution to the pur-
chase price.

29Susan Scott-Hunt, FeministPerspectives On Equity And Trusts (Cavendish

2001).
30
Mark Pawlowski and James Brown, 'Co-Owners And Severance
-

Determining Beneficial Entitlement After Stack' (2013) 27 Trusts Law

International. See also: Alison Diduck and Felicity Kaganas, Family Law,
GenderAnd The State (Hart 2012).
3
Bernard v Josephs [1982] 3 All ER 162.
32Springette v Defoe [1992] 2 FLR 388.
33
Midland Bank v Cooke [1995] 2 FLR 995.
67
Legal Issues Journal6(1) January 2018

1.3 Uncertainty on the Current Law on Cohabitation and Separation

There have been two landmark cases in relation to cohabitation break-
down: firstly, the House of Lords in Stack, and secondly, the Supreme
Court in Jones. Lady Hale in Stack held that Rosset had set the bar too high
by holding that a common intention to share the equitable title could only
be inferred or a non-legal owner being one of the parties had made a direct
financial contribution to the acquisition of the property. 34 The law moves
away from a restricted set of circumstances to a more flexible approach in
this case, which aimed at giving the parties the most suitable and fair out-
come on the facts of each and every case. In joint name cases, the starting
point is that equity follows the law and that the parties are joint tenants
both in law and equity i.e. they have 50% each; in sole name cases, there
is no presumption of joint beneficial ownership. In a sense, the sole legal
owner scenario is rather more significant, since a legal non-owner may
lack entitlement altogether while a joint legal owner is unlikely to go away
empty-handed. 6 Stack introduced significant changes to the law of trusts
of family homes, holding that they prima facie hold their equitable shares
equally in a ratio of 50:50 as in a joint name case. Conversely, if the
property was held in the sole name of the defendant, the claimant prima
facie has no equitable interest. This reflects the starting point that 'equity
follows the law', and will amount to a strong presumption which may be
displaced only in 'very unusual' circumstances, where the couples have
reached an agreement about their legal position during their relationship is
the only exception. If a claimant wishes to challenge the presumption, they
will have to demonstrate that there was a common intention between the
parties to do so. It may be express, inferred or imputed, where Baroness
Hale and Lord Walker agree, but Lord Neuberger dissents.3 9 According to
Lady Hale, to find an implied or imputed common intention, the court will

34
Jones (n 6), para 63.
3sJohn Wilson and Rebecca Bailey-Harris, 'Family Law Week: Jones V Kernott
- Another Helping Of The Witches' Brew?' (Family Law Week)
<http://www.familylawweek.co.uk/site.aspx?i=ed89478> accessed 16
December 2017. See also: Pawlowski and Brown, (n 29).
36Brian Sloan, 'Keeping Up With The Jones Case: Establishing Constructive

Trusts In 'Sole Legal Owner' Scenarios' (2015) 35 SSRN Electronic Journal.

37
Jones (n 6), para 114
38Mark Pawlowski, 'Imputed Intention And Joint Ownership - A Return To
Common Sense: Jones v Kernott' (2012) 76 Conveyancer and Property Lawyer.
39
Stack v Dowden [2007] UKHL 17.
68
 No Sympathy to Women and Children in Securing Their Family Home

draw up in "the whole course of dealing between the parties", 40 involving

"all conduct which throws light on what shares were intended".41 Baroness
Hale provided a non-exhaustive list of the factors which might be suffi-
cient to displace the presumption, including financial contributions; advice
or discussions at the time of the purchase; the reasons why the home was
acquired in their joint names; the purpose for which the home was ac-
quired; the nature of the parties' relationship; whether they had children
for whom they both had responsibility to provide a home; how the pur-
chase was financed, both initially and subsequently; how the parties ar-
ranged their finances, whether separately or together or a bit of both; and,
how they discharged the outgoings on the property and their other house-
42
hold expenses. Rosset is not to be interpreted strictly under Stack, which
is correct in that women's domestic work should not be excluded. It can
be seen from Stack that a wider view is preferable and that the whole
course of dealing under Midland Bank is a more desirable and correct ap-
proach. Taking all these factors into consideration would lead the court to
establish an inferred common intention constructive trust based on the
facts of each case..
Nevertheless, Baroness Hale in her leading judgement held that it is not
for the court to impose its own view of determining what is fair and to
search the parties' shared intention, actual, inferred or imputed.4 3 Unfor-
tunately, she missed the opportunity to clarify the test, leading to a degree
of unpredictability. William Swadling agrees that the House of Lords
failed to ensure whether the case law after Pettitt was consistent with the
law there laid down.44 The relationship between resulting, constructive
trusts and proprietary estoppel becomes difficult to understand; the latter
approach was barely mentioned in Stack.4 5
The law had already 'moved on' from Stack since Lord Bridge's re-
marks in Rosset. Unsurprisingly, certain problems still exist. English
judges are thus reluctant to accept Stack's possible invitation in some cases

40
Stack v Dowden [2007] UKHL 17 para 12; Oxley v Hiscock [2005] Fam 211,
para 69.
41Mark Pawlowski, 'Imputing Beneficial Shares In The
Family Home' (2016) 22
Trusts and Trustees.
42Stack v Dowden [2007] UKHL 17 para 69.
43
Ibid para 61.
44William Swadling, 'The Common Intention Trust In The House Of Lords: An

Opportunity Missed' (2007) 123 Law Quarterly Review.

45Sir Nicholas Browne - Wilkinson VC's judgement in Grant v Edwards.

69
Legal Issues Journal6(1) January 2018

as it is not yet settled whether the court may impute a common intention
in subsequent 'sole name' cases. The problem facing the court in
Adelcunle v Ritchie (2007)46 was whether it would be appropriate to apply
the approach in Stack in all cases. Judge John Behrens QC concluded that
Baroness Hale did not limit her approach to a restricted range of cases,
which has subsequently been confirmed by the Court of Appeal in Laskar
v Laskar (2008), even though she had framed her comments in terms of
a "cohabiting couple".
Later on, in the context of sole legal ownership, the strength of the Stack
presumption has been affirmed by the Court of Appeal with similar cer-
tainty. In James v Thomas (2007),48 the appellant failed to establish a ben-
eficial interest in property since his contributions to funding the mortgage
on the property were not sufficient to rebut the presumption raised by the
defendant's status as sole holder of legal title. This narrow conception of
inferred common intention, originally rooted in Rosset, has been subse-
quently bolstered by the Court of Appeal in Morris v Morris (2008),4
where the court similarly held that contributions to a far business run
jointly by the claimant and defendant were not sufficient to displace the
presumption. This robust approach of the Court of Appeal may not have
been the outcome which Baroness Hale really intended, as she disapproved
the narrow extent to which inferred common intention was restricted under
Rosset.50 Even the claimant himself in James had admitted that it may have
given rise to some unfairness for his partner not to have an interest. On the
contrary, Fowler v Barron (2008)51 is a good example that Stack has had
a tangible influence on the outcome of proceedings. The Court of Appeal
applied the strong presumption that equity follows the law in this case and
awarded the claimant a half share without making any finance contribution
to the property, even though the court has previously regarded this circum-
stance as 'unusual'..
Such an approach marks a significant move away from Rosset, but no
indication is given as to the relative weight of different factors in post-
Stack cases, and the type of conduct which could lead to the inference of

46
Adekunle & Ors v Ritchie [2007] EW Misc 5 (EWCC).
47
Laskar v Laskar [2008] EWCA Civ 347.
48
James v Thomas [2007] EWCA Civ 1212.
49
Morris v Morris & Ors [2008] EWCA Civ 257.
50
Adam Doyle and James Brown, 'Jones v Kernott: Which Road To Rome?'
(2017) 26 Trusts Law International.
5
Fowler v Barron [2008] EWCA Civ 377.
70
 No Sympathy to Women and Children in Securing Their Family Home

a common intention constructive trust.52 No closed category has been pro-

vided and consideration varies according to different judgments. Later,
both Lady Hale SCJ and Lord Walker SCL in Jones suggest that the ho-
listic factors set out in Stack will be used to both find a constructive trust
and to quantify the equitable interest.5 3
In this regard, Jones made it clear that imputation is the final option
available to the court to find an express or inferred intention between the
parties when either of these intentions cannot be found. Yet, it remains
vague from Jones how 'fairness' will be used to quantify an imputed in-
tention once it is found, and whether an imputed intention can be only used
to alter a party's equitable share in the property or whether it can be used
for finding a constructive trust as well. Jones has actually thus created new
areas of uncertainty.
As can be seen, the law relating to constructive trust is extremely con-
fusing. In Jones, a cohabitee couple brought the house in their joint names
and both were responsible for mortgage, but without any express agree-
ment as to their beneficial interests. The English courts again rose to the
challenge of determining this unmarried cohabitants' shares in the family
property in this case. The court in this case attempted to follow the deci-
sion in Stack. However, concerning on the actual facts that the man had
left the house for 16 years, made no further contributions , and the woman
solely paid for its operating expenses and raised the children, the woman
therefore acquired 90% share of the house because it would be rigid and
unfair to grant the man 50% share. The leading judgements of Lord Walker
and Lady Hale again emphasised that the starting point is that equity fol-
lows the law, and if it is clear that original intentions have changed then
the court will be able to give judgement based on what is fair and consider
the whole course of dealing of the relationship. This is of great importance,
as intentions are usually adjusted when there are some changes in parties'
lifestyle due to realities of relationship, such as the birth of a child or un-
employment. The result will all depend on the facts of each case and vari-
ous non-exhaustive factors that the court will take into account when de-
ciding what is fair. Oxley v Hiscock (2004)54 is the authority that the court
should consider what is 'fair having regard to the whole course of dealing',
the so-called holistic approach, when approaching the quantification issue.

52Andrew Dymond, 'Inference And Imputation: Cases After Jones v Kernott'

(2016) 19 Journal of Housing Law.
53
Jones v Kernott [2011] UKSC 53.
54
Oxley v Hiscock [2004] EWCA 546.
71
Legal Issues Journal6(1) January 2018

This approach is uncertain, since it cannot be known how much weight

each approach would carry in the mind of the judge.
Quantification was to be decided separately from acquisition, based on
finding express intention or financial contribution. It refers to what was
"fair having regard to the whole course of dealing between the parties in
relation to the property" instead. 5 The court has wide discretion to pro-
ceed on the meaning of fairness.. Although it can be perceived that "if an
agreement to share is found, then imputing an intention where no actual
intention on size of sharing can be deduced is perfectly sensible", 6 the law
should always strive for certainty as opposed to permitting judges to do as
they think fit. In practice, imputation thus blends seamlessly into a discre-
tionary assessment of fairness. 7 Nevertheless, Pawlowski (2012) thinks
that it is both practical and sensible, as such a residual option enables the
court to come to a conclusion as to quantification, no matter what the cir-
cumstances are, despite the fact that the reasoning and decision would
rarely be predictable.
In Thompson v Hurst (2012)s9 the Court of Appeal was invited to extend
the application of the presumption in Jones. The Court of Appeal rejected
to apply Jones and emphasised that equitable ownership would be pre-
sumed to be equal even if the contribution was unequal. In the later case
of Aspden v Elvy (2012),o the court considered how the principles in Jones
apply in a sole name case. The judge did impute an intention by reference
to "what is fair having regard to the whole course of dealing between the
parties". The outcome seems harsh for Mr Aspden, who bought the farm
in his sole name, meeting all the costs and outgoing himself, which turns
out that imputing common intention might sometimes be problematic. On
the other hand, it is the first time for the Court of Appeal post-Kernott that
the acquisition stage of sole name cases is equally governed by the Kernott
principles as in Greary v Rankine (2012). It seems to try to produce the

55
Jones, (n 48), para 51.
56
Ying Khai Liew, 'The Secondary-Rights Approach To The 'Common
Intention Constructive Trust.' (2015) 210 Conveyancer and Property Lawyer.
s7Andrew Dyson, All's FairIn Love And Law: An Analysis Of The Common
Intention Constructive Trust.
58
Mark Pawlowski, 'Imputed Intention And Joint Ownership - A Return To
Common Sense: Jones v Kernott' (2012) 76 Conveyancer and Property Lawyer.
59Thompson v Hurst [2012] EWCA Civ 1752.
60
Aspden v Elvy [2012] EWHC 1387 (Ch).
61
Geary v Rankine [2012] EWCA Civ 555.
72
 No Sympathy to Women and Children in Securing Their Family Home

fairer and predictable result, despite the fact that weight given to relevant
factors will still need to be teased out in subsequent cases.

1.4 Blurring of Boundaries

A set of principles was finally established in Jones, but certain problems

still remain. Particularly, the fact that they only apply to jointly-owned
properties so the harsh test of Rosset may still relied upon in 'sole name
cases'. 6 2
Although it seems that Stacks and Jones could be applied in both joint
and sole cases in recent years, the earlier cases remain important, as Stack
and Kernott failed to overrule previous authority and because their princi-
ples are so broad that there is still room for those earlier cases such as
Rosset to apply and be relied upon. First, Baroness Hale missed the chance
to indicate weights on different factors which could infer parties' intention.
Besides, it is still uncertain whether the principles set out in Kernott are to
apply to the acquisition of beneficial rights or whether they are to apply
only to the quantification of the interest. If they are to apply only to the
quantification then the harsh test in Rosset may still be applied in acquisi-
tion which may lead to harsh and unfair outcomes. It has been suggested
that the female partner in a relationship will be discriminated by distin-
guishing these factors apart from direct financial contributions, as women
are most likely to take the role of home-maker. Yet, too much discretion
has fallen into the judges' hands and the courts' own sense of justice, 64 and
it should be conducted with a view to discerning the parties' intention in-
stead. Otherwise, the application of a fairness test will produce a situation
of 'palm tree justice'. 5

62KesterLees, 'Geary v Rankine: Money Isn't Everything' [2012] The

Conveyancer and Property Lawyer.
63Simon Gardner and Katharine Davidson, 'The Supreme
Court On Family
Homes' (2012) 128 Law Quarterly Review.
64Graham Battersby, 'Ownership Of The Family Home:
Stack v Dowden In The
House Of Lords' (2008) 20 Child and Family Law Quarterly.
65
Simone Wong, 'Constructive Trusts Over The Family Home: Lessons To Be
Learned From Other Commonwealth Jurisdictions?' (1998) 18 Legal Studies.
73
Legal Issues Journal6(1) January 2018

Part 2

2.1 Introduction of the TOLATA 1996

There is a possibility that owners will go on to secure an order for sale of
their property after going through the above process of establishing a ben-
eficial interest.. Where there is a sole owner and a non-owning cohabitant
with a beneficial interest, either party can make an application to the court
for a declaration of interest and an order directing or preventing sale under
section 14 of the Trusts of Land and Appointment of Trustees Act (TO-
LATA) 1996, which deals with trusts of land whether express, implied,
resulting or constructive. In the latter category of trusts, if the defendant's
name is solely on the Title Deeds then it will be uncertain whether only
the sole owner or his/her spouse has a beneficial interest of the property
because TOLATA does not empower the court to adjust the parties' ben-
eficial shares in the property.. Section 15 provides a non-exhaustive list of
factors for the court to take into account. The court then simply decides
the relative weight that should be given to the desire to remain in the home
or the purely financial interests of a creditor.
The classic cases applying TOLATA usually fall into one of the follow-
ing two cases:

1. Disputes between two co-owners, where one wishes to retain the

property and the other wishes to sell it;
2. Disputes between a mortgagee and a creditor, where the home
should be sold to enable debts to be paid.

2.2 Current Law on Application for Sale under TOLATA 1996

Section 14 of TOLATA provides the court with wide powers in a relation
to ordering an immediate sale or postponing a sale. The court must then
take into account the following factors, which are set out in section 15 of
the Act:

66Paul Omar, 'Equitable Interests And The Secured Creditor: Determining

Priorities' (2006) 70 Conveyancer and Property Lawyer. Also see: Adam
Baker, 'The Judicial Approach To "Exceptional Circumstances" In Bankruptcy:
The Impact Of The Human Rights Act 1998' [2010] Conveyancer and Property
Lawyer.
74
 No Sympathy to Women and Children in Securing Their Family Home

"The matters to which the court is to have regard in determin-

ing an application for an order under section 14 include:
(a) Intentions of the person or person (if any) who created the
trusts;
(b)The purposes for which the property subject to the trust is
held;
(c)The welfare of any minor who occupies or might reasona-
bly be expected to occupy any land subject to the trust as his
home, and
(b)The interests of any secured creditor of any beneficiary."

Previously, such disputes were dealt with under the old "trust for sale"
regime in the Law of Property Act (LPA) 1925, which TOLATA replaced
with a more flexible regime for the resolution of disputes, which lends
more weight in favour of sale. 7 Unfortunately, some unpredictability re-
mains. Firstly, under section 15(1)(a) the purposes for which the property
subject to the trust is held should be taken into account. 8 In Re Buchanan9
one of the four co-owners of land asked the count to grant an order for sale
but was rejected, because the purpose of the trust to provide an unrestricted
sea view would otherwise be undermined. On the contrary a sale had been
70
ordered in Jones v Challenger since there was no continuing original
purpose of the trust to provide as a matrimonial home after the divorce of
the trustees. However, the court in Ali v Hussein, a joint occupation of
house similar to Re Buchanan, only made an order of postponing the sale
for several months so as to allow the other co-owners to raise sufficient
money to buy the seller out of their shares in the property. There is con-
siderable scope for discretion in the application of the guidance given in
section 15. The decision in Ali is much more pragmatic and the more likely
approach of the courts today whilst the outcome in Re Buchanan may
therefore seem a little unfair to a co-owner who wishes to sell.

67Susan Pascoe, 'Section 15 Of The Trusts Of Land And Appointment Of

Trustees Act 1996 - A Change In The Law?' [2000] Conveyancer and property
lawyer.
68Lord Denning in Bedson looked at the purpose of purchasing the house.
69
Re Buchanan-Wollaston'sConveyance [1939] Ch 738.
70Jones v Challenger [1961] 1 All ER 785.
71Ali v Hussein (1974) 231 EG 372.
75
Legal Issues Journal6(1) January 2018

In Re Ever's trust,72 the man subsequently moved out, leaving the

woman and their children still living in the house; he then applied to the
court for an order for sale. The application was refused as the purpose of
acquiring the property as a family home could still be fulfilled, an outcome
which is contradictory to Miller-Smith. Given that the couple had already
been separated for 18 months, the court ordered the sale because the pur-
pose of the ownership of the house to provide a family home no longer
existed. The obvious disparity between these two cases can be explained
by the fact that one of the additional and crucial factors listed under section
15 is the welfare of any minor living at the property. As the property was
still home to the applicant's children, the sale of the house would have
been detrimental to their welfare. The courts have adopted a highly flexi-
ble, circumstance dependent approach to two-party disputes when acting
under this section.74

2.3 Disputes Between a Co-owner and A Secured Creditor: Focus on

Children's Issue
The breakdown of a relationship between cohabitees may be in favour of
sale because of their intention to use the home as a family home. The ex-
istence of children is just more relevant to the court's discretion to order
sale under section 14 of TOLATA. Where there are minor children it may
serve well to prolong the purpose of the trust and tip the scale towards not
ordering the sale of their family home. The pre-TOLATA cases show an
inconsistent approach to the relevance of the interests of children. Sec-
tion 15(1)(c) of TOLATA now makes the interests of children an essential
consideration. It makes this area of law confusing and uncertain due to the
inconsistency in the way common law development is followed;7 6 and this
unpredictability may cause anxiety to co-owners and their children about
the outcomes and their basic human rights.

72
Re Evers' Trust [1980] WLR 1338.
73
Miller-Smith v Miller-Smith [2009] EWCA Civ 1297.
74
Martin Dixon, 'To Sell Or Not To Sell: That Is The Question. The Irony Of
The Trusts Of Land And Appointment Of Trustees Act 1996'(2011) 70 The
Cambridge Law Journal.
75
See Rawlings v Rawlings [1964] P. 398 (CA); Burke v Burke [1974] WLR
1063; Williams (JW) v Williams (MA) 1976 ch.278.
76
Pascoe, (n 66).
76
 No Sympathy to Women and Children in Securing Their Family Home

The concept of concerning children in this issue was first adopted in

Williams v Williams,7 7 where the sale order would generally not to be or-
dered until the young children have grown up, unless they are able to find
an alternative accommodation at a cheaper rate. The rule under section 15
is flexible as in Re Ever's trust, in which the sale was postponed until the
youngest child reached 16, as the Court of Appeal agreed that an immedi-
ate sale will not be appropriate as it would affect the lives of the children..
Lord Neuberger in Mortgage Corporation v Shaire7 8 emphasised that
the law had changed under TOLATA by comparison with section 30 of
the LPA 1925. Parliament in section 15(1) of the Act had intended to 'tip
the scales more in favour of families and against banks and other creditors'
- otherwise there was no reason or necessity to pass TOLATA and the law
could stay the same. Shaire8 o is an important case as it stated clearly that
the importance of the interests of children and the interests of creditor has
no special weighing in TOLATA unlike the previous section 30. However,
this approach changed in Bank of Irelandv Bell81 from Shaire, where the
Court of Appeal ordered the sale on the grounds that there was no payment
to the bank for eight years and the mortgagee's son was nearly 18 year old,
considering that the creditors' interest should prevail over that of the ben-
eficiaries. 82 Likewise, the court inAchampong3 ordered sale because there
was no prospect for the defendant to pay off her debt and it would be unfair
to keep the bank waiting indefinitely. The outcome in Lloyd's bank v Ed-
ward84 is inconsistent with the previous case. The court focused on chil-
dren's interest and concerned that the consequence of the sale to the wife
and children would be unacceptably severed. It therefore postponed the
sale for five years until the youngest child reached 18 years old even
though the bank was waiting for money. If it affected full-time education
then it would be willing to prolong the period of sale. The court made this
flexible by referring to the factors in section 15, and also two additional

77
Williams v Williams [1976].
78
Mortgage Corporationv Shaire [2001] Ch 743.
79
Pascoe, (n 66).
80
Mortgage Corporation,n 70
81
Bank of IrelandHome Mortgages v Bell [2001] 2 All ER (Comm) 920.
82Peter Gibson LJ in Bank of Ireland Home Mortgages v Bell [2001].
83
FirstNational Bank v Achampong [2003] EWCA Civ 487.
84Edwards v Lloyds Bank plc [2004]
EWHC 1745 (Ch).
77
Legal Issues Journal6(1) January 2018

reasons: (1) the debt was much less than the value of husband's shares
so the creditor would definitely get the money at some point;86 (2) the wife
would not be able to purchase an alternative house and family interest is a
very important concern.
So far, section 15(1)(c) is significant as it ensures that the welfare of
children is considered. The outcomes mentioned above are however in-
consistent and were criticised by Roger Smith for producing too much un-
87
certainty. Some cases did put emphasis on children's interest the most

-
whether they have reached 18 years old and whether the sale will affect
their education and growth; or whether their family member could be able
to find an alternative house to replace after the order of sale. However,
there is a risk that the interests of creditors will trump the rights of even
very young children if the interests of those nearing 18 years old are only
a very slight consideration. Indeed, the minors will soon grow up and
their interest will, from this understanding, cease to be a relevant concern.
If this interpretation of section 15 prevails then the wind has changed and
blown us back to where we started.

2.4 Human Rights Challenge - Rights to Private and Family Life

Fred Perry89 brought up human right concerns, and mentioned that section
15 must be compatible with section 8 of the ECHR9o and perhaps policy
should have been formulated by Parliament, rather than relying on the de-
velopments in case law. Although any interference must be for a legitimate
aim and must be proportionate to that aim,91 these rights are not absolute.

85Susan Bright, 'Occupation Rents And The Trusts Of Land And Appointment
Of Trustees Act 1996: From Property To Welfare?' (2009) 73 Conveyancer and
Property Lawyer.
86See: Foenanderv Allan [2006] EWHC 2101 (Ch)
and Martin-Sklan v White
[2006] EWHC 3313 (Ch).
87Nicholas Hopkins, 'The Trusts Of Land And Appointment
Of Trustees Act
1996' (1996) 267 Conveyancer & Property Lawyer.
88
Rebecca Probert, 'Creditors And Section 15 Of The Trusts Of Land And
Appointment Of Trustees Act 1996: First Among Equals?' (2002) 61 The
Conveyancer and Property Lawyer.
89
FredPerry (Holdings)Ltd v Genis and another (2014). This case is
unreported.
90Article 8 of the European Convention on Human Rights.
91
Martin Dixon, 'Trusts Of Land, Bankruptcy And Human Rights' (2005) 69
Conveyancer and property lawyer.
78
 No Sympathy to Women and Children in Securing Their Family Home

As in National Westminster Bank plc v Duncan David Bruce Rushmer

Fiona Jane Rushmer, 92 there had been, unfortunately, no explicit discus-
sion of the rights of Mrs Rushmer and of the couple's children under Ar-
ticle 8 by weighing all the factors set out in section 15. Arnold J noted in
this judgement that 'I would not rule out the possibility that there may be
circumstances in which it is necessary for the court explicitly to consider
whether an order for sale is a proportionate interference with the Article 8
rights of those affected, but I do not consider that this will always be nec-
essary.'
Yet, the greatest concern is that there is no weighing of the factors within
section 15: the responsibility entirely lies with judges to determine how
much weight to afford to all relevant factors, including those not specifi-
cally referred to in section 15. The 1996 Act has changed the law from the
previous practice which was heavily weighted in favour of sale; however,
the judge here had been given wide discretion under section 15(1) whilst
no criteria had been set out in the section for the judge to consider relevant
factors. Inconsistent outcomes from the abovementioned cases could be
deemed as evidence that would throw doubt on the extent of any such
change, which offers no security in regards to children's interests and un-
dermines their 'rights to a private and family life'. As the above-mentioned
cases indicate, legislative and judicial policy makers have routinely fa-
voured the interest of creditors over those of occupiers, diminishing the
legal protections of occupiers.94
Neuberger J's approach in Shaire is actually radical: it recognises more
rights for beneficiaries and their children, who are usually the victims and
suffer in the dispute without knowing the legal repercussions behind the
ideals and purposes of modern home ownership when the creditor applied
for sale of their family home in payment of their mortgage interest.95 Park
J in Edwards argued that it would be equally desirable for the bank to re-
cover its debt admittedly later rather than sooner, though immediate sale

92National Westminster Bank plc v Duncan David Bruce Rushmer FionaJane

Rushmer[2010] EWHC 554 (Ch).
93
National Westminster Bank plc v Duncan David Bruce Rushmer FionaJane
Rushmer [2010] EWHC 554 (Ch) para.50.
94
Lorna Fox, 'Creditors And The Concept Of 'Family Home': A Functional
Analysis' (2005) 25 Legal Studies.
95Nicholas Hopkins, 'Regulating Trusts Of The Home: Private Law And Social

Policy' (2000) 125 Law Quarterly Review.

79
Legal Issues Journal6(1) January 2018

was not desirable and unacceptable in respect of Edwards and her chil-
dren.9 6
In reality, even if a more flexible approach had emerged under section
15, it would have been a paper tiger, easily undercut by recourse to the
insolvency regime as the utility of developing a flexible approach under
section 15 of the 1996 Act is dependent on creditors bringing their appli-
cations under that provision; creditors are therefore willing to obtain an
order of bankruptcy, which has the more favourable provision to them.

2.5 Insolvency Act 1987 - What is exceptional?

In relation to trustees in bankruptcy under the Insolvency Act 1987, there
is a presumption in favour of sale after an initial one-year adjustment pe-
riod. Section 335A lists a number of matters to be taken into account: the
interests of the bankrupt's creditors; the conduct of any spouse or civil
partner so far as they contribute to the bankruptcy and their needs and fi-
nancial resources; the needs of any children; and all the circumstances of
the case other than the needs of the bankrupt. However, sale may be post-
poned if there are exceptional circumstances9 8 and this criterion has been
narrowly construed. The eviction of the bankrupt's wife and children, even
if the sale would make the children's schooling very difficult, in Re Citro99
were not considered as exceptional circumstances under section 335A.
The approach under section 335A is strict with respect to balance between
family home and interest of creditors, and refused to treat the general dis-
ruption to family life caused by the sale of family home as exceptional
circumstances. Nourse LJ emphasised that the bankruptcy rule, in theory,
will disregard the purpose whether it is still continuing, unlike the TO-
LATA.10 0 Notwithstanding the strict rules, some inconsistent outcomes
from certain cases can be found. What the courts will accept as 'excep-
tional circumstances' is usually limited to situations in which one of the

96
Edwards v Lloyds Bank [2004] para.33.
97
Oliver Radley-Gardner, 'Section 15 Of TLATA, Or, The Importance Of Being
Earners' [2003] Web JCLI.
98
'Exceptional circumstances' as stated under section 335A(3) of the Insolvency
Act 1986.
99
Re Citro [1991] Ch 142.
10
oNourse U in Re Citro [1991] Ch 142.
80
 No Sympathy to Women and Children in Securing Their Family Home

co-owners is seriously unwell, as in Re Mott, 10o in which the sale had post-
poned until after the bankrupted mother's death. In Re Bailey102 , the court
also postponed the sale for 2 years rather than immediately in order to
permit children to finish their schoolings on the grounds of the considera-
tion of their disability. It has been thus suggested that it is weird for hold-
ing a long postponement of sale for 5 years not on disability or serious
illness grounds in Re Holiday.103 This case indeed takes a more relaxed
and flexible approach on the postponement of property sale.
Grant v Baker 04 is a case conferring high authority on creditors, where
the court emphasised that the purpose of the Insolvency Act was to enable
the property sale to pay creditors and that the interests of the bankrupt's
creditors outweigh all other considerations; 105 any delay should be delayed
months but not a year on the grounds that the creditors would prefer to be
paid sooner rather than later. 106 However, the approach under section 335A
seems not to be as rigid as the court judgements indicate. The court de-
cided to postpone the sale indefinitely in Calughton'0 7 on the basis that the
court took beneficiaries' special housing needs as an exceptional circum-
stance. It is very unlikely to have the same outcome if the judges applied
a much stricter approach as in Grant v Baker. 108 1 0 9 . The court in Re
Bermner1 o also widely recognised the wish of the spouse to take care of
the bankruptcy himself could amount to exceptional circumstances. 1 In
fact, there are still different factors affecting the court in determining an
order of sale. For instance, in Fownander v Allan 112 and Martin-Sklan v
White 13 a postponement of sale in light of exceptional circumstances was
actually not expected to prejudice the creditor, because the sum realised

101
ReMott [1987] CLY 212.
102R v Bailey [1983] Crim LR 353.
10'[1981] 1 Ch 405.
104Grant& Another v Baker [2016] EWHC 1782 (Ch).
5
10 Ibid para 31.
106Bankruptcy Nicolls v Lan and Nicholls [2006] EWHC 1255 (Ch).

107Claughton v Charalambous[1998] BPIR 558.

10 8
Grant& Another v Baker [2016] EWHC 1782 (Ch).
109
11 0
Re Bremner [1999] BPIR 185.
111Also see Re Raval [1998] B.P.I.R. 384.
112Foenanderv Allan [2006] EWHC 2101 (Ch).
11 3
Martin-Sklan v White [2006] EWHC 3313 (Ch).
81
Legal Issues Journal6(1) January 2018

on sale would still be sufficient to repay the outstanding debt. In Re Holi-

day114, sale was postponed for five years until the children reached 17
years old, at which point the proceeds of sale represented by the bankrupt's
beneficial share would still be sufficient to pay his debts with interest. An
immediate sale, however, would leave his former wife with insufficient
funds to obtain alternative accommodation. This harsh outcome seems
similar with some previous cases referred to in relation to section 15 of the
TOLATA.
Henderson noted that there is a risk that the matter will continue to drag
on without anyone taking any serious steps to deal with it if judges are too
generous. Uncertainty and unpredictability have been derived from differ-
ent inconsistent outcomes in many cases, which the courts have not rigidly
followed the Parliament's intention behind the insolvency regime. In
15
Barca v Mearss the argument was advanced that the absence of any abil-
ity by the court to undertake a proper balancing of interests under section
335 constituted an infringement of Article 8 of the Human Right Act 1998.
Although it was still not, following the development of case law, sufficient
to prevent sale, this view seems to show that disputes between owners and
creditors still tend to be resolved in creditors' favour.1 1 6 Decisions in var-
ious mentioned cases certainly took account of the needs of the family as
in Everitt v Budhram where the court concerned not only with financial
needs but also other factors, such as emotional, psychological or mental
needs. Indeed, the Cork Report explicitly advised that the court should not
order an immediate sale unless satisfied with the fact that no avoidable
hardship to the family will be caused by the sale of their family home.
It would also be clearly wrong to allow a debtor or his family to continue
to live in lavish style at the expense of the creditors for an extended period.
It is therefore sensible and reasonable for the court to delay, but not to
cancel, the enforcement of creditors' rights. Such guidelines as can be
given must by necessity be in the most general terms, which has caused

114[1981] 1 Ch 405.
115
Barca v Mears [2004] EWHC 2170 (Ch).
116
Omar, (n 64).
117Everitt v Budhram (a bankrupt) and another [2009] WLR (D) 167.
118
R. V. UPEX, 'The Cork Report: Employee Protection And Insolvency' (1982)
11 Industrial Law Journal.
82
 No Sympathy to Women and Children in Securing Their Family Home

uncertainty and lack of security for family and children, more indication
that the factors for sale should therefore be call for alarm as a matter of
emergency.

3. Conclusion

This article consisted of two parts: the existing problems derived from
common intention constructive trust and the application of sale under TO-
LATA 1996 in relation to family home. The gender inequality of ignoring
women's indirect contribution to the property and no consistently indi-
cated factors to secure children and wives who are involved in disputes
against creditors under the TOLATA 1996, have set alarm bells ringing.
Nowadays, the rights of cohabiting couples are still not recognised un-
der English Law, and it is conceivable why the UK Parliament's failure to
legislate in this area has been widely criticized for the problems stated.
The common intention constructive trust as a common law approach has
often placed women in a subordinated and unfair position in securing an
interest in a property when the cohabitation breaks down, simply because
they strive for utmost in taking the roles as a housewife and a mother. The
discretion conferred on the court by section 15 has undoubtedly interfered
with Article 8 of the Human Right Act 1998 in respect to the adverse im-
pacts on children and wife in the sale of family house and the exploration
of their rights to a private and family life. Perhaps policy should have been
formulated by Parliament, rather than relying on the developments in case
law and so the common intention constructive trust in relation to a family
home dispute.

119
Martin Dixon, 'To Sell Or Not To Sell: That Is The Question. The Irony Of
The Trusts Of Land And Appointment Of Trustees Act 1996' (2011) 70 The
Cambridge Law Journal.
83
Legal Issues Journal6(1) January 2018

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Barca v Mears [2004] EWHC 2170 (Ch)
Bankruptcy Nicolls v Lan and Nicholls [2006] EWHC 1255 (Ch)
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84
 No Sympathy to Women and Children in Securing Their Family Home

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 No Sympathy to Women and Children in Securing Their Family Home

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