ABSTRACT
Family members and other individuals frequently contribute to the joint purchase of property (such as the family home and other assets) with the legal title taken either in their joint names or in the name of one person. Sometimes the parties express their intention as to the ownership of the equitable interest and this will be conclusive in the absence of fraud or mistake. If the asset is land, this express declaration of trust is required to be evidenced in writing in order to satisfy the requirements of s 53(1)(b) of the Law of Property Act 1925. Where the parties do not express their intention (or do not comply with s 53(1)(b) of the 1925 Act) the courts have adopted settled principles of trusts law in order to ascertain their beneficial interests. These are: (i) the resulting trust concept, which is applicable where the parties have made substantial contributions to the acquisition of the property; and (ii) the constructive trust principle, based on reliance on a common intention between the parties to the claimant’s detriment. In addition, the interests of the parties may be modified in limited circumstances by statute, such as ss 23-25 of the Matrimonial Causes Act 1973.
