Family Home: Doing Justice to the Parties

Mark Pawlowski Professor of Property Law University of Greenwich. Prior to the landmark Court of Appeal decision in Oxley v Hiscock [2004] EWCA Civ 546 [2004] 2 FLR 669 two divergent lines of authority had emerged for determining the quantum of beneficial interest arising under a constructive trust in the context of the family home. At one extreme the parties equitable entitlement fell to be assessed by means of a strict arithmetical calculation of the parties respective financial contributions towards the acquisition of the property on the basis of a resulting trust; see Springette v Defoe [1992] 2 FLR 388. Alternatively a broader approach based on a determination of what is fair between the parties having regard to the whole course of dealing between them relevant to their ownership and occupation of the home (and their sharing of its burdens and advantages) was adopted in Midland Bank plc v Cooke [1995] 4 All ER 562 and Drake v Whipp [1996] 1 FLR 826. In Oxley the Court of Appeal accepted this more robust analysis to quantification and rejected the strict resulting trust...

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