Constructive Trust Essay

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ALL’S FAIR IN LOVE AND LAW: AN ANALYSIS OF THE COMMON INTENTION CONSTRUCTIVE TRUST ANDREW DYSON * The article analyses the application of the common intention constructive trust to disputes involving the family home, as the law stands after Stack v. Dowden and the numerous recent cases interpreting that decision. It is suggested that instances of actual unfairness are rarer than often thought, because of the judiciary’s willingness to manipulate the formal rules of the trust in order to avoid injustice. Criticism should instead be focused on the hidden costs of allowing fairness to trump formality: a hole in the integrity of the law, and the spiralling costs of litigation which flow from the complexity of the doctrine. It is concluded that a statutory scheme is the only way forward for the law of cohabitation. I. INTRODUCTION Created by the House of Lords across two separate hearings,1 the common intention constructive trust has since been tackled twice more by the House of Lords, 2 countless times by the Court of Appeal, and by the Law Commission in an effort spanning over a decade. 3 Unlike the broad redistributive powers granted to courts upon divorce,4 there is currently no statutory regime governing the financial consequences of separation for unmarried cohabitants. The common intention constructive trust expanded to fill the vacuum. Despite the doctrine’s increasing social relevance,5 it has remained an elusive and complex topic. The only aspect of * Queens’ College, Cambridge. My thanks to Brian Sloan for his challenging and constructive comments on several earlier drafts. The usual disclaimer applies. 1 Pettitt v. Pettitt [1970] A.C. 777 (hereafter “Pettitt v. Pettitt”); Gissing v. Gissing [1971] A.C. 886 (hereafter “Gissing v. Gissing”). 2 Lloyds Bank Plc v. Rosset [1991] 1 A.C. 107 (hereafter “Lloyds v. Rosset”); Stack v. Dowden [2007] UKHL 17, [2007]
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