Posts Tagged ‘sole name’

Burns v Burns: unmarried cohabitees, title to family home in sole name

May 11, 2016

In Burns v Burns ([1984] Ch. 317, CA (Eng)) the couple were unmarried (though the woman had changed her  family name to be the same as her partner’s). They lived together for two years and had a child before buying the house that was to be the family home. Title was in the man’s sole name and he made all of the contributions to the purchase price and mortgage installments). Although the female partner contributed to household expenses (rates, phone bills, domestic fixtures and fittings and redecoration) these payments could not be said to have been necessary to allow the man to meet the mortgage payments. The couple lived in the home for seventeen years before separating. The female partner claimed to be entitled to a beneficial interest in the property under a common intention constructive trust.

The claim failed. There was no evidence of an express intention that she was to have an interest in the property. Nor had she made any payments that could give her an interest under a  resulting trust. It was not possible to infer the existence of a common intention constructive trust from the payments that she had made since they were not referable to the acquisition of the property (Fox LJ ). It would have been different if there had either been direct contributions to the purchase price or if her contributions to the household finances had been necessary to allow the man to make the mortgage payments.

The fact that the woman carried out domestic duties and looked after the children could not be taken into account: ‘the mere fact that the parties live together and do the ordinary domestic tasks is, in my view, no indication at all that they thereby intended to alter the existing property rights of either of them’ (Fox LJ at 331). May LJ made the same point:

‘when the house is taken in the man’s name alone, if the woman makes no “real” or “substantial” financial contribution towards either the purchase price, deposit or mortgage instalments by means of which the family home was acquired, then she is not entitled to any share in the beneficial interest in that home even though over a very substantial number of years she may have worked just as hard as the man in maintaining the family in the sense of keeping the house, giving birth to and looking after and helping to bring up the children of the union’ (at 345).

Michael Lower



Common intention constructive trust: valuation in sole name cases where there is no actual agreement as to how ownership is shared

February 17, 2015

In Graham-York v York ([2015] EWCA Civ 72, CA (Eng)) the English Court of Appeal looked at the approach to be taken to the valuation of an interest under a common intention constructive trust where title was in the sole name of one of the parties and there was no evidence of a common intention as to how the beneficial ownership was to be divided between the parties. Here a couple had co-habited for over forty years and had two children (one of whom was brought up by them and another by a relative). The man had provided nearly all of the family’s financial resources from the various businesses that he ran.

At first instance, the court found that there was evidence of a common intention that his partner (Miss Graham-York) should have an interest in the family home given her financial contribution to the family income before and at the time of the purchase of the property. The court also found that there was no express agreement as to the share that Miss Graham-York should have and that a 25% interest in the property would be a fair reflection of her financial and non-financial contributions over the years.

Miss Graham-York appealed against this finding. She argued that where there was no evidence as to a common intention concerning the size of her share, the court should take fairness as the guide to what they must reasonably be taken to have intended. Her initial and ongoing financial contributions, the length of the co-habitation and her contribution to the bringing-up of her daughter were each, she argued, factors pointing towards equal beneficial ownership ([18]).

Tomlinson LJ gave the principal judgment. He pointed to the joint judgment of Lord Walker and Lady Hale in Jones v Kernott as ‘the most authoritative modern guidance as to the proper approach in cases of this sort’ ([20]). While the search was primarily for the parties’ actual shared intentions, there were two situations in which this was not the case. The first of these was the situation in which the presumed resulting trust operated. The second, relevant here, involved cases, ‘where it is clear that the beneficial interests are to be shared, but it is impossible to divine a common intention as to the proportions in which they are to be shared.’ Here, ‘the court is driven to impute an intention to the parties which they may never have had.’ (Jones v Kernott, [31]).

Tomlinson LJ went on to comment on the scope of the enquiry as to fairness in these circumstances. The court must do what is fair having regard to the whole course of dealing in relation to the property (Jones v Kernott, [51]). The court ‘is not concerned with some form of redistributive justice’; so, here, the abuse that Miss Graham-York had suffered during her long relationship was not a relevant factor (Graham-York v York, [22]).

There is no presumption of equality of interests in sole name cases, even where the other party has made a substantial contribution. (Graham-York v York [25]).The first instance judge had identified the appropriate legal principles and applied them correctly. Miss Graham-York’s appeal was dismissed.

Michael Lower