Common Intention Constructive Trusts

Introduction

This chapter examines the **trusts of the family home** — the way in which equity determines who owns what share of a shared home when a couple separates. Where a couple is **married or in a civil partnership**, the **Matrimonial Causes Act 1973** gives the family courts broad redistributive powers. But there is **no equivalent statutory regime for cohabiting (unmarried) couples** — the popular idea of 'common law marriage' is a **myth**. For cohabitees, ordinary **trusts law** decides their beneficial interests. This chapter focuses on the two principal equitable mechanisms: the **common intention constructive trust (CICT)** and **proprietary estoppel**, alongside express and resulting trusts.

Assessment focus

For SQE1 FLK1 you must be able to **apply** the law of the family home to a realistic client scenario. You should distinguish **joint legal ownership** from **sole legal ownership**, and identify the correct route to a beneficial share: **express trust** (s.53(1)(b) LPA 1925), **resulting trust** (purchase-price contributions), **common intention constructive trust** (common intention + detrimental reliance) and **proprietary estoppel** (assurance, reliance, detriment). Questions are single best answer questions (SBAQs); you will be expected to pick the **most apt** doctrine and to know the leading authorities — **Lloyds Bank plc v Rosset**, **Stack v Dowden**, **Jones v Kernott**, **Thorner v Major** and **Guest v Guest**. This is a closed-book assessment.

Study tips

1) First ask: is the legal title in **joint names** or a **sole name**? The starting point differs (joint names → presumption of joint and equal beneficial ownership; sole name → no such presumption). 2) Remember there is **no statutory regime for cohabitees** — the MCA 1973 applies only to married couples / civil partners. 3) A **resulting trust** counts **only purchase-price contributions at acquisition** — not later mortgage instalments, conveyancing fees or non-financial contributions. 4) A **CICT** needs **(i) common intention** (express agreement OR inferred from conduct) **plus (ii) detrimental reliance**. 5) **Proprietary estoppel** needs **assurance + reliance + detriment** making it **unconscionable** to go back on the assurance; the **remedy is discretionary** (Guest v Guest [2022] UKSC 27).