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Ally Tow
Ally Tow
Senior Associate
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Imputing intention and the family home
Date:7 MAR 2016
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Barrister and Professor of Property Law
This article seeks to address the question whether it is possible to impute to the parties a common intention to share beneficial ownership in the family home at the acquisition or change of intention stage of establishing a constructive trust in single and joint ownership cases.

The article examines a number of first instance and Court of Appeal decisions since the landmark Supreme Court ruling in Jones v Kernott [2011] UKSC 53, [2012] 1 FLR 45 which appear to accept a process of imputation at only the second (assessment) stage of the analysis.

Interestingly, however, in Jones itself, Lord Wilson left open the possibility of allowing the common intention required at the first stage to be imputed if it was not otherwise identifiable by express discussions or inferred from the parties’ whole course of conduct. Most recently also, Mostyn J, in Bhura v Bhura (No 2) [2014] EWHC 727 (Fam), [2015] 1 FLR 153, when rehearsing the applicable principles, summarised the effect of Jones by essentially collapsing the traditional two-stage analysis into just one question of identifying the parties’ common intention by reference to a genuine agreement, inference from conduct or by imputed agreement aimed at delivering fairness.

In the final analysis, imputation may be justified because it permits the court to arrive at a solution which objectively reflects the parties’ reasonable expectations. If that is right, then the question must be asked as to why a similar exercise may not be adopted at the initial stage of the enquiry. Why not impute a common intention reflecting what the parties (as reasonable persons) must have intended by reference to all the facts so long as this does not override what the parties actually intended?

The full version of this article appears in the February 2016 issue of Family Law.

Online subscribers can access the full version of the article here.

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