Common Intention Constructive Trusts (CICT) UK
|Topics:||🚸 Public Policy, 🏳️ Government, 💍 Marriage|
Table of Contents
The Common Intention Constructive Trusts (CICT) United Kingdom (UK) provides a regulation for married couples to share the home property in case of divorce irrespective of whether they were purchased by one of the partners before they were married. This law has been implemented in the UK for the last 40 years but it has been accompanied with a number of controversies that have led to the conclusion that it is in a state of flux. There are a number of criticisms associated with the current Common Constructive Trust laws in the UK that warrant its description as being in a state of flux or ineffective in resolving the home ownership issues among couples who have divorced. This paper supports the statement that ‘It is a well-known criticism that the English law of constructive trusts in the context of family homes purchased otherwise than by married couples and those in a civil partnership is in a state of flux”. This is achieved by illustrating areas of disagreement with the law and cases where families have been faced with suits in resolving cases of home ownership.
The ‘Common Intention’ is difficult to explain
The right to equal home ownership among couples upon divorce is difficult to explain due to the fact that it is difficult to establish the common intent of the parties. There is a possibility of discussion of the parties that they may live without the consideration of the law but it may be decided arbitrarily based on the law of common intention. In actual situation, the common intention can be express or implied, but it must be real, and the judge is not required to invent it. This law does not put into consideration the views that the parties may have or their interests towards the concept of common intention.
Controversy regarding the relevance of Contributions of partners
The Common Intention Constructive Trusts (CICTS) has been associated with the limitation of not considering the contributions of the partners to the property they own before a controversy. The principles illustrated in this area are simple and easy to apply. It also states that the contribution of each partner to equal home ownership should be measured in financial terms despite the fact that the contributions may be direct or indirect. Some contributions may not be measurable, thus resulting into a difficulty in ascertaining the actual value of home that should be allocated to one of the spouses. This has resulted into many partners who are involved in home ownership suits unable to share the property in accordance with the Common Intention Constructive Trusts requirements. Some spouses may not be in marital status for the purpose of equal contribution to home or property. This law also ignores this possibility in marriages.
The relevance of the Contributions of Partners to the Homes is not well-explained in the Law
The CICTs has been associated with a flux regarding the definition of the contribution of partners in the acquisition of a home or property within their homes. Situations have been observed where doctrines associated with constructive trusts operate for the purpose of conferring interests upon the role played by partners to the acquisition of a home or property. Nevertheless, the principles associated with this are not clear and difficult to apply. While it is arguable that a qualifying contribution must be expressed in financial terms, it is not clear whether it has to be directly referable to the acquisition of a home or property in case of a direct or indirect contribution. It is not satisfactory in terms of its requirements for the parties to share a home because it does not for the beneficial ownership of the house. It also does not account for the decisive effect of whether the house is owned by one or all of the parties. In certain situations, the process of allocating financial responsibility could be contrived in favor of a partner who does not have a legal title in a home.
Discrimination Against home-makers
The fact that the CICT law requires that partners should share a home or a property in marriage or cohabiting relationship does not account for the role of the home-makers. Many partners who have shared a home for a long duration of time are not able to establish the requisite ‘common intention’ and are unable to prove ‘financial’ contribution since they may have been occupied in other activities such as bringing up children. This has resulted into a strong argument in opposition of the current law that it discriminates against those who do not get income from employment.
A similar situation was observed the case of Burns v Burns , CA, in which a couple lived together without being married and the woman changed her name to be the same as that of the male partner. They lived together and had one child before they bought a house. The house expenses and installments were all paid by the man. However, the female contributed to the maintenance activities, decorations, and payments of bills involved in the use of the house. They lived in the house for seventeen years before separation. The female partner presented a case in court in order to be granted the right of equal property ownership in accordance with the Common Intention Constructive Trust. The claim failed. The judge found no evidence of an express intention that she had an interest in the purchase of the property. In addition, she had not made financial contribution that warranted her interest under the current trust. There was a difficulty in inferring the existence of a common intention constructive trust due to the payments she made because they did not refer to the acquisition of the home. According to the view of Justice Fox LJ, the fact that the parties lived together and performed the ordinary domestic tasks did not imply that there was an intention of transfer of ownership rights to the female partner.
The limitation of the Common Intention Constructive Trust In this case is that it does not explain how the female spouse should be compensated for her role in the payments of the bills, phone calls, and decorations used to make the building attractive while they lived together. The decisions of the judges is explicit based on the initial purchase cost of the house and does not account for the role of the female partner in performing maintenance tasks which is a fact that she incurred her personal costs. In this situation, however, the Common Intention Constructive Trust Law is partly applicable and should have been partly applicable as the basis on which judgment was to be made. The female partner should have been allocated a certain amount of rights to the value of the house due to the fact that they had lived together and shared responsibility in the house as partners.
The Common Intention Constructive Trust Uses Uncertain Principles of Quantification of Benefits
The principles of equal rights to a property of a home as required by the Common Intention and Constructive Trust (CICTs) of the UK does not provide a basis of the quantity that each partner should receive in cases of a divorce. The rights to ownership of a home are uncertain and difficult to reconcile with the actual contributions of the partners. For instance, in the case of Burns v Burns, if the judges made a decision in favor of the plaintiff, it would have been difficult to ascertain the actual contribution she made towards the maintenance of the house and whether the allocated amount was equal to her actual contributions. Nevertheless, the actual judgment in the case was more severe towards the female partner because it did not account for the expenses which she incurred during the 17 years that they lived with her partner.
The Controversy regarding Proprietary Estoppel
There are concerns regarding the proprietary Estoppel characteristics of the CICTs in the UK because when partners get married or are involved in a partnership, they do not necessarily need to provide one another with assurance of claims for a property or a home. It is also states that the claimant may be reliant upon the suggestions of the partner to ownership to his or her detrimental in case of any consequence of such reliance. In the analysis of the case of Burns v Burns, it is established that the female souse was claiming her assurance of ownership of the house after diverse but it was necessary that her partner had to provide an approval that she was entitled to her claims. The CICTs does not state whether one of the partners has the right to approve the claims of ownership of a property until all the parties are compensated in an equal manner. The law also states that reliance to the proprietal estoppel is detriment to the person who relies on it as a means through which he or she will be compensated in case a divorce of partners. It implies that there are no measures which have been put in place to protect the property rights of partners in marriages, thus affecting its effectiveness. In the case of Burns v Burns, it implies that while the Common Intention Constructive Trust law might have been in existence at the time of the divorce, the female partner did not have the right to demand her share of the property because she is not guaranteed by the law. Section 37 part 2(a) of the proprietary estoppel states that the clarity of a representation must be judged based on the context in which a case has been conducted. This law does not determine when the claims of assurance by the plaintiff need to be taken seriously and it relies on the judges’ interpretation of the claims by the plaintiff.
The process of awarding a remedy for estoppel has not been apparent in the same manner as a contract because it does not specify the measures of what the claimant needs to be awarded. Contrastingly, most estoppels try to provide awards that are significantly higher than what the claimant needs to be awarded. If it is assumed that the female spouse in the case study lived with her male partner for only 2 years, the Proprietary estoppel in Common Intention Constructive Trust would suggest that she is assured of equal rights as the actual buyer of the house despite the fact that her contributions are below this value.
Lack of Relevant Explanation of Post-Breakdown Occupation of a Home
While Common Intention Constructive Trust law states that partners have equal rights to home and property, it does not state who should have the right to occupy a home upon breakdown of a relationship. This is contrary to the fact that one partner must be restricted from using the home or a property in case of dissolution of a marriage. If this law was applied in resolving the case of Burns v Burns, it would be difficult to determine whether the female spouse was to be allowed to stay in the home after the case or not. It would have been difficult to determine the criteria of the person who retains the home even if they are entitled to equal share of their home and property.
Conclusion of Key Points
This paper explains the view that the current is in a state of flux because it does not address home and property sharing cases affecting the UK citizens who live as spouses in an effective manner. It does not determine the amount of property that each partner should be allocated, it does not account for the intention of one of the partners to own the property, it does not measure the contribution or role played by different partners towards ownership of a property, and it does not address the proprietary estoppel aspects of the claims. It has been suggested that these areas must be addressed in order to promote its effectiveness in addressing home and property ownership in case of a breakage of marriages.
- Beale, H., Bénédicte F., Jacobien R., Denis T., and Stefan V.. Contract Law: Ius Commune Casebooks for the Common Law of Europe. Bloomsbury Publishing, 2010.
- Clements, R., and Ademola A. Equity & Trusts: Text, Cases, and Materials. Complete, 2015.
- George, R.H. “Cohabitants’Property Rights: when is fair Fair?.” The Cambridge Law Journal 71, no. 1 (2012): 39.
- Gregory, W.A. The doctrine of parol agreement trusts and fraud in equity: an historical- doctrinal analysis of equity’s jurisdiction under the head of fraud to impose trusts arising out of parol agreements. Diss. 2016.
- Hayward, A. “Common intention constructive trusts and the role of imputation in theory and practice.” Conveyancer and property lawyer. 80, no. 3 (2016): 233-242.
- Hudson, A. Understanding equity & trusts. Routledge, 2016.
- McFarlane, B., and Charles M. Hayton and Mitchell: Text, Cases and Materials on the Law of Trusts and Equitable Remedies. 2015.
- Penner, J. The law of trusts. Oxford University Press, 2016.
- Sloan, B. “Stacking the Odds against variable equitable interests in the family home.” The Cambridge Law Journal 70, no. 1 (2011): 27-29.
- Swadling, W. “The common intention constructive trust in the House of Lords: An opportunity missed.” Law quarterly review 123 (2007): 511.
- Turner, P. G., ed. Equity and Administration. Cambridge University Press, 2016.
- Virgo, G. “Patel v Mirza: one step forward and two steps back.” Trusts & Trustees 22, no. 10 (2016): 1090-1097.
- Watt, G. Cases and Materials on Equity and Trusts. Oxford University Press, 2016.
- YIP, M. “The Rules Applying to Unmarried Cohabitants’ Family Home: Jones v Kernott  UKSC 53.” The Conveyancer and Property Lawyer(2012): 159.
Offered for reference purposes only.