Building a New Foundation for Trusts of the Family Home: The Case for Unjust Enrichment
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I graduated from Durham with a First-Class degree, ranking 4th out of my cohort. I am currently studying the Bachelor of Civil Law (BCL) at the University of Oxford. I decided to write my dissertation on reform of the law of trusts of the family home, as the family home is unique, it is often the owner’s most valuable asset, and it is the subject of strenuous debate upon relationship breakdown. Despite its importance, I believed that the current law did not provide a convincing and coherent basis for ascertaining who had an interest in the family home, and how such an interest should be quantified.
Whilst researching reform strategies, I read a persuasive article from Sir Terence Etherton, who believed that what was ‘sorely needed’ was a ‘coherent legal framework across the boundaries of trusts, estoppel and restitution’, to solve the unduly complex, arbitrary, and uncertain nature of the law in this area. My dissertation propounds such a coherent framework, notably drawing upon the law of unjust enrichment. Whilst a novel solution, this method has found favour with the Canadian Supreme Court, and I draw upon the Canadian experience to argue that a similar approach could be developed in England and Wales.
With Lady Hale and Lord Walker having retired, and Lord Burrows (a restitution specialist) having been appointed to the Supreme Court, it will be interesting to see how the court deals with a case like Stack v Dowden, in the future. I hope you enjoy reading this novel approach as much as I enjoyed creating it
Introduction
The family home is unique. It is often the owner’s most valuable asset, and it is the subject of strenuous debate upon relationship breakdown. Despite its importance, the law has not yet provided a convincing and coherent basis for ascertaining who has an interest in the family home, and how such an interest should be quantified. This has left the area of trusts of the family home, ‘complicated and difficult to apply’.
The conflicting doctrines in this area, (the Resulting Trust (RT) and the Common Intention Constructive Trust (CICT)) prioritise different criteria (monetary contributions, and common intention, respectively), and have been argued to apply to different contexts (domestic or commercial). This has left the law ‘unduly complex, arbitrary and uncertain’ for cohabitants, who wish to acquire or have their beneficial interest in the property quantified.
As Sir Terence Etherton lamented, what is ‘sorely needed’ is a ‘coherent legal framework across the boundaries of trusts, estoppel and restitution’. This dissertation will propound such a coherent framework, as it will be based upon consistent and easily applicable policies, and will reject a case-by-case analysis based upon specific facts and doing justice, which ‘has not worked well so far’.
