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 255

Case Commentary
Ownership of the family home:
Stack v Dowden in the
House of Lords
Graham Battersby*
Stack v Dowden is a landmark decision, because it is the first case on family
property to reach the House of Lords since Lloyds Bank plc v Rosset in 1981.
The reasoning of the majority, while carrying the law forward, also creates
major causes for concern, and the reasoning in the minority judgment is
preferred.

Stack v Dowden' is the first case on family property to reach the House of Lords since
Lloyds Bank plc v Rosset and Another2 in 1975. It is, therefore, necessarily a landmark
decision. After Rosset, the law was dominated first by a well known passage in the
speech of Lord Bridge of Harwich in that case 3 (too well known to bear repetition
here). The next significant case was Midland Bank plc v Cooke and Another,4 where
the Court of Appeal awarded Mrs Cooke, after a marriage lasting more than 20 years,
a 50% share in the matrimonial home, even though her financial contribution was a
mere 6.47%. That was on the basis that, since it was clear that Mrs Cooke was
entitled to some interest in the house, however small, her share should be quantified
at the time of break-up on the basis of what the court considered a fair share, having
regard to the whole course of dealing between the parties. That decision came up for
review in Oxley v Hiscock,5 where an unmarried couple had contributed to their home
in the proportions, approximately, of 40:60. The Court of Appeal, approving the
approach in Midland Bank plc v Cooke, adopted a constructive trust analysis and
declared the shares to be 40:60. Finally, now comes Stack v Dowden, which also
concerns an unmarried couple. This case appears to be the first to reach the House of
Lords where the legal estate was vested in both parties.

THE FACTS
Mr Stack and Ms Dowden began their relationship in 1975, when he was aged 19 and
she was aged 17. However, it seems that they did not start cohabiting until 1983. They
lived together in a house in Purves Road, London, NW10, conveyed into Ms Dowden's

Edward Bramley Professor of Law (Emeritus), University of Sheffield.

[2007] UKHL 17, [2007] 1 FLR 1858.
2 [1991] 1 AC 107.
3 Ibid, at 132E-133C.
4 [1995] 2 FLR 915.
5 [2004] EWCA Civ 546, [2004] 2 FLR 669.
256 Child and Family Law Quarterly, Vol 20, No 2, 2008

sole name, and of which she was the sole mortgagee. Four children were born to the
couple, in 1986, 1987, 1989 and 1991. A great deal of work was done on the house,
much of it by Mr Stack.
That house was sold in 1983 for E90,000, around three times the price for which it
was bought. Mr Stack may, or may not, have had a claim to a share of the proceeds of
sale. That same year another house, in Chatsworth Road, London, NW2, was bought
as a family home. This time it was vested in their joint names, using the then current
Land Registry form. They separated in 2002, Mr Stack leaving the house, while
Ms Dowden stayed with the children. Proceedings were commenced by Mr Stack in or
around September 2003 under section 14 of the Trusts of Land and Appointment of
Trustees Act 1996. Mr Stack's principal claim was for a declaration that the parties
held the property on trust for themselves as tenants in common in equal shares and
for an order for sale. In October 2004 the trial judge, His Honour Judge Levy QC, after
a two-day hearing, ordered that the house should be sold and that, subject to some
minor variations, the proceeds of sale, together with the proceeds of the joint
endowment policy, should be divided equally. He also held that various other savings
and investments should lie where they were. The house was sold in November 2005,
with net proceeds of E754,345.
On the appeal of Ms Dowden the Court of Appeal allowed her appeal, and ordered
that the proceeds of sale should be divided 65% to Ms Dowden, 35% to Mr Stack.'
The leading judgment was delivered by Chadwick LJ, with the concurrence of
Carnwath and Smith LJJ. Chadwick LJ closely followed his own approach in Oxley v
Hiscock. The essence of the reasoning was that, once it is accepted that both parties
should have an interest, the question turns to the quantification of each party's
interest. In the absence of any evidence of agreement or discussion between them as
to their respective shares, the answer is that each is entitled to the share which the
court considers fair having regard to the whole course of dealing between them in
relation to the property. At this stage of the decision-making process, it makes little
difference whether the legal estate is vested in one of the parties or in both, although
the fact that a property is vested in joint names is to be taken into account in reviewing
the course of dealing.

DECISION OF THE HOUSE OF LORDS

The House of Lords confirmed the decision of the Court of Appeal, but for very
different reasons. There was, in fact, a 4:1 difference of opinion as to the reasoning,
Lord Neuberger of Abbotsbury being in the minority. The leading opinion for the
majority was delivered by Baroness Hale of Richmond, with the concurrence of Lord
Hoffmann, Lord Hope of Craighead and Lord Walker of Gestingthorpe. Baroness Hale
started her opinion7 with a summary of the social and legal context since the Second
World War; she mentioned, in particular, the rise in home ownership, continuing house
price inflation, and the rise in cohabitation without marriage. She then turned' to an
analysis of Land Registry practice where the house is registered in joint names (this
was a registered land case). The form used prior to 1 April 1998 required the parties to
state whether or not the survivor of the joint tenants can give a good receipt for capital
moneys arising on a disposition of the land. It was argued on behalf of Mr Stack that
choosing 'can' amounts to an express declaration of a beneficial joint tenancy. That

6 Stack v Dowden [2005] EWCA Civ 857, [2006] 1 FLR 254.

Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858, at para [40].
8 Ibid, paras [50]-[52].
Ownership of the family home: Stack v Dowden in the House of Lords 257

proposition had previously been rejected at least twice by the Court of Appeal, 9 and
Baroness Hale approved those decisions: choosing 'can' rather than 'cannot' is
consistent with other intentions. Baroness Hale then pointed out that the Land
Registry form has changed. It now provides a box for the transferees to declare the
trusts on which they are to hold. If such a declaration were made in every case of joint
legal ownership, the problem of implied trusts would disappear. However, a
declaration is not mandatory," and in all probability cannot be made mandatory;" the
problem of implied trusts is therefore likely to continue into the foreseeable future.
Baroness Hale then turned to the legal principles applicable to implied trusts. 12 The
starting point, she said, is that, where there is sole legal ownership, there will be sole
beneficial ownership; equally, where there is joint legal ownership, the starting point is
that there will be joint beneficial ownership. In both cases, the onus is on the person
claiming that the beneficial ownership is different from the legal ownership. So, in the
present case, the onus was on Ms Dowden to prove that that she was entitled to more
than her interest as a beneficial joint tenant; she had to prove that there was a
common intention to that effect.
It therefore becomes a crucial question as to how that common intention can be
proved. Baroness Hale provided an indicative list of factors that can be taken into
account in divining the parties' intention.13 They cover a very wide spectrum:

'any advice or discussions at the time of the transfer which cast light on their
intentions then; the reasons why the home was acquired in their joint names; the
reasons why (if it be the case) the survivor was authorised to give a receipt for the
capital moneys; the purpose for which the home was acquired; the nature of the
parties' relationship; whether they had children for whom they both had
responsibility to provide a home; how the purchase was financed, both initially
and subsequently; how the parties arranged their finances, whether separately or
together or a bit of both; how they discharged the outgoings on the property and
their other household expenses.'

Her Ladyship added:

'The parties' individual characters and personalities may also be a factor in

deciding where their true intentions lay. In the cohabitation context, mercenary
considerations may be more to the fore than they would be in marriage, but it
should not be assumed that they always take pride and place over natural love
and affection.'

9 Harwood v Harwood [1991] 2 FLR 274; Huntingford v Hobbs [1993] 1 FLR 736. See The Mortgage
Corporation v Shaire and Others [2001] Ch 743. The position is somewhat comparable to that which
arises in a mortgage to joint mortgagees (presumed to be tenants in common in equity), where the Law
of Property Act 1925, s 111 implies a joint account clause, but that does not affect the beneficial
interests: Re Jackson; Smith v Sibthorpe (1887) 34 Ch D 732.
10 See A. Moran, 'Anything to Declare? Express declaration of trust on Land Registry form TR1: the
doubts raised in Stack v Dowden' (2007) 71 Cony 364, arguing that the real reason why a declaration
is not mandatory is that the Land Registry does not in practice raise a requisition if the box is not
completed.
Ibid, urging the Land Registration Rule Committee to recommend that completion of the box be made
mandatory.
12 Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858, at paras [53]-[70].
13 Ibid, at para [69]. Baroness Hale added: 'This is not, of course, an exhaustive list' (at para [70]).
258 Child and Family Law Quarterly, Vol 20, No 2, 2008

Baroness Hale then turned to applying the law to the facts. 1 4 It was for Ms Dowden to
show that the common intention was to hold the property otherwise than as beneficial
joint tenants. Baroness Hale was critical of the judge's approach, because he made no
precise findings on many of the matters relevant to that question, concentrating rather
on the length and character of their relationship (27 years and four children). However,
Baroness Hale was able to find many factors which indicated that the parties did have
a different common intention. The first was that Ms Dowden contributed far more to
the purchase of the Chatsworth Road house than did Mr Stack. Both parties knew
that, and, although the intention was that Mr Stack would pay the interest on the
mortgage loan and the premiums on the joint policy, they also planned to reduce the
loan as quickly as possible. All other regular commitments were undertaken by
Ms Dowden. Moreover, all other financial matters were kept completely separate.
Baroness Hale commented:

'This is, therefore, a very unusual case. There cannot be many unmarried couples
who have lived together for as long as this, who have had four children together,
and whose affairs have been kept as rigidly separate as this couple's affairs were
kept. This is all strongly indicative that they did not intend their shares, even in the
property which was put in both their names, to be equal (still less that they
intended a beneficial joint tenancy with the right of survivorship should one of
them die before it was severed). Before the Court of Appeal Ms Dowden
contended for a 65% share and in my view she has made good her case for
that.'"

Lord Hope of Craighead, agreeing with Baroness Hale, added a footnote as to how
the case would be approached in the law of Scotland. He showed how in recent years
the Scottish courts have turned to the law of restitution (unjust enrichment), but he
was clear that the result in Scotland would be the same as that proposed by Baroness
Hale.16
Lord Walker of Gestingthorpe started his opinion with an elegant tribute to Baroness
Hale: having read her opinion in draft, 'I have set aside as redundant most of the
opinion which I had prepared'." However, he went on to consider, 'as a sort of
extended footnote'," the theoretical underpinning of this branch of the law. It is a
detailed and scholarly analysis, to which this summary cannot do full justice. He
revisited, in particular, Pettitt v Pettitt" and Gissing v Gissing.2 0 He stated2 1 that the
most crucial question in relation to common intention trusts is whether the court must
find a real bargain (or real intention) between the parties, or whether the court can
infer or impute a bargain (or intention). He examined in particular the two speeches of
Lord Diplock in Pettitt and Gissing. He pointed out 2 2 that Lord Diplock in Pettitt
14 Ibid, at paras [86] et seq.
15 bid, at para [92].

Lord Neuberger commented (at para [105]) that, in view of the current work of the Law Commission in
this field, it would not be appropriate for the English courts now to change the law by adopting the law
of Scotland (or vice versa). See also Lord Walker at para [23].
17 bid, at para [14].

Ibid, at para [15].

19 [1970] AC 777.
20 [1971] AC 886.
21 Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858, at para [17].
22 Ibid, at para [18].
Ownership of the family home: Stack v Dowden in the House of Lords 259

repeatedly used the word 'impute' in relation to the parties' intention, but he was in the
minority in doing so. In Gissing Lord Diplock retracted the word 'impute' and
substituted 'infer', but as Lord Walker pointed out,23 the substance of the reasoning,
leading to a 'resulting, implied or constructive trust', was essentially the same. Lord
Walker referred 24 to Lord Diplock's 'insouciant approach to legal taxonomy'. However,
Lord Walker himself later concluded that, 'whether the trust should be regarded as a
resulting trust or a constructive trust may seem a distinctly academic enquiry'.25
His Lordship then turned 26 to the third major decision of the House of Lords, Lloyds
Bank plc v Rosset.27 He cited the well-known passage in the speech of Lord Bridge of
Harwich. 28 He commented on Lord Bridge's extreme doubt whether, in his second
category, anything less than direct contributions to the purchase price will suffice. Lord
Walker's view29 was that, 'Whether or not Lord Bridge's observation was justified in
1990, in my opinion the law has moved on, and your Lordships should move it a little
more in the same direction'. His Lordship's view, a little later in his opinion,30 was that
the law should take a wide view of what is capable of counting as a contribution
towards the acquisition of a residence, while remaining sceptical of the value of
alleged improvements that are really insignificant, or elaborate arguments (suggestive
of creating accounting) as to how the family finances were arranged.
Having considered Drake v Whipp,3 1 where the wife had contributed 40% to the
initial purchase of a barn, but only 20% when the cost of converting it was taken into
account, Lord Walker said32 that the doctrine of a resulting trust would there be very
artificial; for one thing, it would split the project into two parts, when the parties'
common intention from the outset was that they would share the beneficial ownership
proportionately to their overall contributions. He concluded:33

'In a case about beneficial ownership of a matrimonial or quasi-matrimonial home

(whether registered in the names of one or two legal owners) the resulting trust
should not in my opinion operate as a legal presumption, although it may (in an
updated form which takes account of all significant contributions, direct or indirect,
in cash or kind) happen to be reflected in the parties' common intention.'

Lord Walker's final comment was on proprietary estoppel.34 He said that he was now
'rather less enthusiastic' about the suggested assimilation of proprietary estoppel and
constructive trusts. 'Proprietary estoppel', he said: 'typically consists of asserting an
equitable claim against the conscience of the "true" owner. The claim is a "mere
equity", and it is to be satisfied by the minimum award necessary to do justice,35 which
23 Ibid, at para [19].
24 Ibid, at para [23].
25 Ibid, at para [28].

26 Ibid, at para [24].

27 [1991] 1 AC 107.
28 Ibid, at 132E-133C.
29 Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858, at para [26].
30 Ibid, at para [34].
31 [1996] 1 FLR 826.
32 Stack vDowden [2007] UKHL 17, [2007] 1 FLR 1858, at para [31].
33 Ibid.
34 Ibid, at para [37].
35 Citing Crabb v Arun District Council [1976] Ch 179, at 198.
260 Child and Family Law Quarterly, Vol 20, No 2, 2008

may sometimes lead to a mere monetary award'. A 'common intention' constructive

trust, by contrast, is identifying the true beneficial owner or owners, and the size of
their beneficial interests'.
Lord Neuberger of Abbotsbury reached the same conclusion as the other members
of the House of Lords (a 35:65 split), but by a very different route. In a very well
reasoned opinion36 he adopted what he called a structured approach, distinguishing
between the position on the acquisition of the property and the position that arises
later. Where the property is transferred into the parties' joint names, and there is no
evidence of a different intention, the beneficial interest will, obviously, also be joint.
Where there are differential contributions, the property will be held in beneficial shares
proportionate to the contributions, on the basis of a resulting trust. This is old law,
going back at least to Dyer v Dyer in 1788,37 but it is also modern law.38 Of course, this
is no more than a presumption rebuttable by evidence of a contrary intention. Lord
Neuberger called for the requisite intention to be inferred (if not express), not imputed:
'To impute an intention would not only be wrong in principle and a departure from two
decisions of your Lordships' House in this very area, but it would also involve a judge
in an exercise which was difficult, subjective and uncertain'.39
Lord Neuberger then turned to the position in the light of events occurring after the
date of acquisition. The parties may vary their original shares, but compelling evidence
is needed of their intention, and that 'would normally involve discussions, statements
or actions, subsequent to the acquisition, from which an agreement or common
understanding as to such a change can properly be inferred'.40 The making of
significant improvements by one party might justify increasing that party's share, as
might differential mortgage repayments where the parties have equal means, but the
payment of other ordinary outgoings would not normally be relevant.41
Lord Neuberger was critical4 2 of Chadwick LJ's formulation in Oxley v Hiscock, that
the court should consider what is 'fair having regard to the whole course of dealing
between [the parties] in relation to the property'; as Lord Neuberger said, fairness is
not the appropriate yardstick, and the phraseology is too imprecise. On the facts of the
present case, His Lordship concluded that there was nothing in the parties'
subsequent actions to justify a departure from the position as at acquisition, based on
a resulting trust.

COMMENT
The facts of Stack v Dowden are, in essence, quite simple: the Chatsworth Road
property was transferred into their joint names, but they contributed in very unequal
shares to its acquisition, and they kept their other assets separate. Most lawyers, the

36 Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858, at paras [96]-[158].
37 2 Cox Eq Cas 92.
38 Lord Neuberger cited Lord Upjohn in Pettitt v Pettitt [1970] AC 777, at 814B-G, Lord Pearson in
Gissing v Gissing [1971] AC 886, at 902G-H, Lord Brightman in Malayan Credit Ltd v Jack Chia-MPH
Ltd [1986] 1 AC 549, at 559G-H, and Lord Browne-Wilkinson in Westdeutsche Landesbank
Girozentrale v Islington London Borough Council [1996] AC 669, at 708A. Baroness Hale, at para [57],
cited part of the above passage from the Malayan Credit case, without acknowledging that the issue
there was based on a presumption of a resulting trust.
39 Stack vDowden [2007] UKHL 17, [2007] 1 FLR 1858, at para [127].
40 Ibid, at para [138].
41 Ibid, at paras [139]-[140].
42 Ibid, at para [144]. See also Baroness Hale at para [61].
Ownership of the family home: Stack v Dowden in the House of Lords 261

present writer included, would have immediately concluded that, in the absence of
evidence of a contrary common intention, they should hold the house as trustees for
themselves in unequal shares proportionate to their respective contributions. This
scenario has for long been regarded as one of equity's special cases, where equity
does not follow the law, because survivorship as to the beneficial interest would not be
fair and would be likely to be contrary to what the parties intended.43 That is the
conclusion ultimately reached by the courts, but it has taken a voyage through the
Court of Appeal (a decision in 80 paragraphs) and the House of Lords (158
paragraphs) to reach that result. Similarly, in Oxley v Hiscock the Court of Appeal,
after a judgment covering 77 paragraphs, reached the conclusion that the fair result
was an apportionment of the beneficial interest exactly the same as the parties'
respective contributions. There must be something basically wrong with the law when,
on simple facts, it can lead to such protracted and expensive litigation.
In the Court of Appeal Carnwath U said," rightly, that:

'To the outside observer, [this branch of the law] may seem like a witch's brew,
into which various esoteric ingredients have been stirred over the years, and in
which different ideas bubble to the surface at different times. They include implied
trust, constructive trust, resulting trust, presumption of advancement, proprietary
estoppel, unjust enrichment, and so on. These ideas are likely to mean nothing to
laymen, and often little more to the lawyers who use them.'

In the House of Lords the reasoning of the majority has certainly clarified these issues.
The starting point is that the beneficial interest follows the legal title, whether there is
one legal owner or two (or more) legal owners. The onus is on the claimant to show by
clear evidence that the beneficial interest diverges from the legal title. What has to be
shown is that there is a common intention that the beneficial interest should so
diverge; if that can be shown, a constructive trust will arise to give effect to that
intention. It is implicit that the notion of a common intention covers both the existence
of the claimant's right and the quantification of that right.
The House of Lords has reverted strongly to the idea of a common intention. At the
quantification stage, Waite LJ in Midland Bank plc v Cooke45 was impatiently critical of
such an approach; he advocated resort to general equitable principles in formulating a
'fair presumed basis for the sharing of beneficial title'. The Court of Appeal in Oxley v
Hiscock and Stack v Dowden built strongly on that foundation. Gray & Gray46
welcomed this new approach and contrasted it with a 'Search for a phantom common
intention'. In some formulations, that could give rise to a broad brush approach in
which the court imposed its own view of what would be a fair outcome (that was
indeed the approach of His Honour Judge Levy QC in Stack v Dowden). The majority
firmly rejected that view. Baroness Hale stated4 7 that the search is throughout for the

43 See, for example, K.J. Gray and S.F. Gray, Elements of Land Law (LexisNexis, 2004), at paras 10.8 et
seq. There are many contexts where the law, in a situation where the real intention of a party is difficult
to ascertain, adopts a presumption, at least as a starting point; see, for example, in a contractual
context, the discussion by Devlin LJ in Ingram v Little [1961] 1 QB 31, at 65-67.
44 Stack v Dowden [2005] EWCA Civ 857, [2006] 1 FLR 254, at para [75].
45 [1995] 2 FLR 915, at 927. See also the same judge, then Waite J, in Hammond v Mitchell [1991] 1
WLR 1127, at 1129H.
46 K.J. Gray and S.F. Gray, Elements of Land Law (LexisNexis, 2004), especially paras 10.21, 10.130
and 10.144. At para 10.138 Oxley vHiscock is greeted as 'An important breakthrough'.
47 Stack vDowden [2007] UKHL 17, [2007] 1 FLR 1858, at para [61].
262 Child and Family Law Quarterly, Vol 20, No 2, 2008

parties' common intention, and the whole course of dealing between the parties is
relevant only in so far as it throws light on the question what shares were intended.
She went on to say that the court must not 'abandon that search in favour of the result
which the court itself considers fair. For the court to impose its own view of what is fair
upon the situation in which the parties find themselves would be to return to the days
before Pettitt v Pettitt'. We should be grateful for this clarification, because it is correct
in principle. While the search for the common intention will often not be easy, there
can be no short cut. The majority's approach might well not be welcomed by first tier
judges, because it will require them to make the best possible, and the most detailed,
findings of fact.
A real cause for concern, however, is the very wide range of factors envisaged as
potentially relevant in ascertaining the parties' common intention.48 In particular,
Baroness Hale's indicative list includes the parties' characters and personalities. One
can see her point; for example, one party might consistently behave in a generous
way towards his partner, whereas in another relationship the opposite might be true.
Nevertheless, the mind somewhat reels at what evidence might be adduced to prove
such matters over the whole possible range of human conduct; evidence from a
behavioural psychologist, for example? This factor did not, in the event, play any part
in the decision in Stack v Dowden; let us hope that Her Ladyship will not prove to have
been over-sanguine in stating that 'cases in which the joint legal owners are to be
taken to have intended that their beneficial interests should be different from their legal
interests will be very unusual'.49
There is surely much to be said for Lord Neuberger's resulting trust analysis: it
produces certainty from the outset where certainty is possible. There is also good
sense in his structured approach, distinguishing between the position on acquisition of
the property and the situation later. Approached in that way, both Oxley v Hiscock and
Stack v Dowden are fairly simple cases, rather than the very difficult cases into which
the appellate courts turned them. It might be added that differential contributions
would not necessarily lead to unequal shares; the court might conclude that each
party had contributed what he or she was able to do at the time, and therefore equal
shares is the correct result." It would have been very helpful, however, if Lord
Neuberger, and indeed the majority, had commented on the substantive outcome in
Midland Bank plc v Cooke, where, by one means or another, Mrs Cooke's share
increased from 6.47% at the outset to 50% some 20 years later." He could also
usefully have commented on Drake v Whipp, in relation to which, as already pointed
out, Lord Walker argued that it would be extremely artificial between the position on
acquisition and the position on conversion of the barn. Thirdly, Lord Neuberger might
have explained how the original share can be varied without a disposition in writing
complying with section 53(1)(c) of the Law of Property Act 1925. Presumably, the
original resulting trust is overtaken by a constructive trust based on the parties'
subsequent words and deeds, but in other contexts it seems that a specifically

48 See the comment of Martin Dixon at [2007] 71 Cony 353: 'the property lawyer's equivalent of a
Pandora's box - everything included with only a small Hope that this will not lead to endemic
uncertainty'.
49 Stack vDowden [2007] UKHL 17, [2007] 1 FLR 1858, at para [69]. See also Lord Walker at para [33].
50 See, for example, Rimmer v Rimmer [1953] 1 QB 63.
si Lord Walker seems to approve the result, because the case is in his list of decisions which have
developed the law: Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858, at para [35].
Ownership of the family home: Stack v Dowden in the House of Lords 263

enforceable agreement is required.52 So, although Lord Neuberger's approach is very

much preferable to the majority's, even on that approach there is work yet to be done.
No issue as to priority between beneficiaries and a mortgagee arose in Stack v
Dowden, and there are no dicta on such an issue. Of course, it being a two trustee
case, any legal mortgage, whenever created, would have priority by overreaching.53
Any acquisition mortgage would have priority.54 However, in a one trustee case, a
subsequent mortgage would not have priority if a beneficial interest had arisen before
the mortgage and the beneficiary was in actual occupation at the date of the
mortgage." In such a case it would therefore be crucial to decide when the claimant's
beneficial interest arose. On Lord Neuberger's resulting trust analysis the claimant's
original beneficial interest arises on the acquisition of the property (it might be varied
later, up or down). On the majority's approach the result is much less clear; it is
arguable that a constructive trust arises on the court's intervention, albeit that the court
is intervening in order to give effect to the parties' existing common intention.
Two comments on Lord Walker's footnote. He may well be right to withdraw his
support for the suggested assimilation, in this area, of proprietary estoppel and a
constructive trust. After Oxley v Hiscock, in particular, there was quite a strong
argument for the assimilation, or at least convergence, of the two concepts.
Detrimental reliance was a key element in both, leading to a remedy fashioned to
achieve justice in all the circumstances of the case." Of course, there remained one
major difference in relation to the available remedies. In proprietary estoppel the court
will fashion an appropriate remedy, which may, typically, involve the creation of a
proprietary interest (including a constructive trust) or, more rarely, may require a
money payment, whereas the imposition of a constructive trust, at least so far in
English law, means the creation of a trust with one or more beneficiaries. It was
possible that English law would follow examples in other Commonwealth jurisdictions
and develop the notion of a constructive trust as a general remedial device to counter
unconscionability, with flexibility as to remedies." That would have meant an even
greater convergence of the two approaches. However, the majority of the House of
Lords in Stack v Dowden have firmly based their reasoning on the parties' common
intention, so that there is now a very clear distinction between this type of constructive
trust and the methodology of proprietary estoppel. The second comment is on Lord
Walker's assertion that, in the case of a family home there should not be a
presumption of a resulting trust. With respect, that is difficult to accept; it seems to
draw a distinction between the law relating to a family home and the law relating to
52 Re Holt's Settlement [1969] 1 Ch 100, at 116; Neville v Wilson [1997] Ch 144.
53 City of London Building Society v Flegg [1988] AC 54.

54 Abbey National Building Society v Cann [1991] AC 56.

's Willams & Glyn's Bank Ltd v Boland [1981] AC 487. This is not the place to comment on the
challenging argument of N. Jackson, 'Overreaching in Registered Land' (2006) 69 MLR 214, that the
Land Registration Acts contain their own overreaching machinery, independent of that applicable to
unregistered land, with the consequences (i) that the two trustee rule applies to registered land only if
invoked by a restriction on the register, (ii) Williams & Glyn's Bank Ltd v Boland is therefore wrongly
decided, and (iii) City of London Building Society v Flegg is correctly decided, but for the wrong
reasons. See also the same author's 'Overreaching and Unauthorised Dispositions of Registered Land'
[2007] 71 Cony 120.
56 See the discussion in K.J. Gray and S.F. Gray, Elements of Land Law (LexisNexis, 2004), at
para 10.177.
1 See, for example, Rawluk v Rawluk (1990) 65 DLR (4th) 161, at 185G-H, per McLachlin J; Peter v
Beblow (1993) 101 DLR (4th) 621, at 640B-G, per Cory J, 649C-650F, per McLachlin J; Giumelli v
Giumelli (1990) 196 CLR 101, paras at [10], [50] and [65].
264 Child and Family Law Quarterly, Vol 20, No 2, 2008

other property, a variant of the 'family assets' theory promoted by Lord Denning and
decisively rejected in Pettitt v Pettitt."
Finally, mention must be made of the Law Commission's recent report,
Cohabitation: The Financial Consequences of Relationship Breakdown.5 9 Very briefly,
the Commission proposes, in almost 200 closely reasoned pages, that cohabitants
who have a child together or who satisfy a minimum qualifying period of a duration to
be set by Parliament (perhaps two years) should, on the breakdown of their
relationship, be entitled to various kinds of financial relief in the Family Courts,
analogous to the remedies available to married couples and civil partners. In
particular, they should have access to the property adjustment regime, to the
exclusion of claims based on implied trusts, estoppel and contract.60 There is logic and
symmetry in this proposed convergence. However, the Commission is very careful not
to propose assimilation; the scheme requires that the applicant for relief must prove
that she has made a 'qualifying contribution', and that as a result she has suffered an
economic disadvantage or the respondent has a retained benefit.61 While there is room
for debate over some of the detailed proposals (and there is a lot of detail in the
report), the underlying thrust of the Commission's proposals command assent. Indeed,
they are long overdue;6 2 the fact that the parties have chosen not to marry is no
justification for unfair outcomes when the relationship breaks down.63 It is very much to
be hoped that the Government will embrace the report and fit the proposals into its
legislative programme.64

5' [1970] AC 777.

59 Cm 7182, Law Com No 307 (2007).
6o Ibid, at para 4.42.
Ibid, at para 4.33.
62 For more than 10 years we have had the absurd anomaly that a cohabiting partner may be better off
financially where the relationship ends on death, because she will have a claim against her deceased
partner's estate: Inheritance (Provision for Family and Dependants) Act 1975, s 1(1)(b)(a), as inserted
by s 2, Law Reform (Succession) Act 1995. The only exception inter vivos is in relation to the transfer
of a 'relevant tenancy', as defined by the Family Law Act 1995, s 53 and Sch 7.
63 For a glaring example of an unfair outcome see Burns v Burns [1984] Ch 317.
64 They are not in the first legislative programme, as announced in the Queen's Speech on 6 November
2007.