The common intention constructive trust in the early 80s

Bernard v Josephs ([1982] Ch. 391 CA (Eng)) is interesting because it shows the English Courts reflecting on how to deal with break-ups of co-habitees. An unmarrried man and woman had contributed to the purchase price and mortgage instalments of their home. Title was in joint names but there was no declaration as to their respective beneficial entitlements. The couple quarrelled and the woman moved out. She sought an order for sale.  The English Court of Appeal pointed out the essential nature of the Court’s task in these cases: it is to discover the parties’ intentions as to their entitlements. The focus is usually on intention at the time of acquisition but evidence as to what happened later can shed light on that intention. In some cases, there might be a later agreement (express or implied)  to vary the share intended at the time of acquisition. Griffiths LJ pointed out that the decision not to marry might or might not (depending on the facts of each case) be relevant when determining the parties’ intentions (at 402). The Court of Appeal decided that the parties intended to share the beneficial entitlement equally. The order for sale would be postponed for four months to allow the man to buy out the woman’s share. The man was to pay an occupation rent from the time the woman moved out but was entitled to credit for the mortgage payments since then.

Michael Lower

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