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Gissing v Gissing

[1970] 3 WLR 255

Case summary last updated at 24/02/2020 14:21 by the Oxbridge Notes in-house law team.

Judgement for the case Gissing v Gissing

The wife did not contribute anything to the purchase price nor the mortgage. She did however contribute to the cost of furnishing the house. It was discussed that if her household contributions meant that the husband was unable to pay the mortgage then she would have an interest. HL held that the wife had made no contribution to the purchase of the home from which they could infer a common intention that she was to have a share. 

Lord Diplock: “A resulting, implied or constructive trust - and it is unnecessary for present purposes to distinguish between these three classes of trust - is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. and he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.” 

Thompson says it was wrong to run together conceptually different types of trust and omitted proprietary estoppel by which a wife could claim a share in the property. NB both Lord Diplock and Lord Reid indicate that they would be prepared to accept indirect contributions to the purchase price, e.g. where the wife’s income goes on furnishing the house, so that the husband can afford to pay the mortgage, but for the precedent of Pettitt.

Lord Pearson: he takes the approach of imputing a common intention to the parties that a spouse acquires an interest in the property proportionate to her contribution to the original cost unless there is actually evidence to the contrary. 

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