Family Law

Mark Pawlowski, Barrister and Professor of Property Law, University of Greenwich. Where there is no express declaration of trust on the transfer of a property, the beneficial interests are to be determined by reference to ordinary trust principles. The question which has remained largely unanswered until Stack v Dowden is whether those principles are the same for both single and joint ownership cases, or whether different rules apply where the transfer is into the joint names of the parties. The question in this case was simple: did the parties intend their beneficial interests to be different from their legal interests? To displace the presumption of joint beneficial ownership, the nature and precise scope of the contrary proof necessary needed to be defined. This could be done either by applying the strict resulting trust approach or by taking a more holistic approach and taking into account all conduct which threw light on the issue of what shares in the property were intended. This article considers the approach of the House of Lords to this issue in detail, and looks at the approach of Lord Neuberger which contrasted with the majority but arrived at the same result. It then looks in brief at the issue of indirect financial contribution and whether this can qualify so as to support a constructive trust, and whether liability under a mortgage should by itself be equivalent to a financial contribution. For the full article see July [2007] Fam Law. This article is also now exclusively available online for subscribers to the Family Law journal online.

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