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Family Property Notes

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THE ACQUISITION OF BENEFICIAL INTERESTS IN FAMILY PROPERTY A.

EXPRESS TRUSTS

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B.

Goodman v Gallant [1986] Fam 106: D was joint beneficial owner of property with her husband. After splitting from H, P moved in and together they bought out H's share, then declaring themselves as joint tenants. When they had relationship problems D tried to sever tenancy and claimed that she had a 3/4 share. Slade LJ: o If the conveyance contains an express declaration of trust which declares the beneficial interests in the property or its proceeds of sale there is no room for the operation of resulting or constructive trusts unless and until the conveyance is set aside or rectified; until that event the document speaks for itself. o There is a real and important distinction between a conveyance into joint names which contains a declaration of trust of the beneficial interests and a conveyance which contains no such declaration. o As there was no claim for rectification or rescission the declaration as to joint shares had to stand.

"COMMON INTENTION" CONSTRUCTIVE TRUSTS

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Gissing v Gissing [1971] AC 886: Husband and wife bought matrimonial home, put in the sole name of the husband. Money was raised by mortgage in the husband's name and from a loan at a company where he worked; the wife having gotten him a job there. Wife paid for furnishings and garden work. Husband left. Held in this case that there was no trust; payments insufficient. o Lord Reid:Thinks that the distinction between direct contributions to purchase price and indirect (such as paying bills so that H can meet mortgage payments) might prove unworkable; disapproves.

* Gives case of joint bank account which meets all liabilities to show difficulties.

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'It cannot surely depend on who signs the cheques'.o

Admits that where payments are indirect then will be more difficult to quantify the share; does not mean that should assume there is a half share; must make a reasonable estimation.
? There is a difference between inferring agreement from conduct and imputing an intention to agree to a share where the evidence gives no such ground. If the evidence shows that there was no agreement in fact then that excludes any inference that there was one. Seems unsure as to whether or not the law allows imputation where latter is the case. Viscount Dilhorne:?o

Thought trust could be implied which was either, resulting, constructive or implied. Where there is a common intention as to shares at the time of acquisition will be held to that. However, in many cases no thought is given as to shares; if this is the case then the court cannot create an intention on their behalf. In determining whether there is a common intention then the court can look to the conduct of the parties; payment for furniture alone is not enough.
? May be possible to discern intention later on e.g. where W starts to make mortgage payments. Lord Diplock:?Thinks that resulting, constructive or implied trust arises where inequitable to deny interest i.e. where it appears there was an agreement or common understanding that W should have a share. An express agreement as to shares in land conveyed into the name of only one of them discloses the requisite agreement for imposition of a trust. Relevant intention of each party is that which can be reasonably deduced from words and conduct; not a subjective intention and is for the court to discern what the intention is.

* Conduct before transfer is stronger than that which follows; different footing.

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Payments towards acquisition or towards mortgage will be sufficient.o o

Court is essentially looking to ascertain whether there was a common understanding. Lord Morris: Thinks that court has no power to impute but can only glean agreement from the conduct. Lord Pearson: Thought the only basis on which there could be a trust is if she contributed towards the purchase price such as to create a resulting trust; interest is then proportionate to the contribution. Does not think that the contribution needs to be direct.

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