In broad terms, the main invitation of this question is to ascertain the relevant quantification of shares of Bob and Jane and the possible alternative avenues open to Jane. The fact that the couple is unmarried means that the Matrimonial Causes Act 1973 cannot apply in regards to distributing property, and instead trust law is applied. When considering trusts of the family home, the acquisition of an interest must first be determined. It is clear here that this is immediately satisfied, as Bob and Jane are joint title owners of the property. Therefore, the overarching question that must be answered is the relevant quantification of their beneficial interests, which the courts will achieve through inferred and imputed intention.
The starting point
At first glance, the fact that Bob and Jane are joint legal title owners signifies a common intention to share the property equally. In the absence of an express written agreement that sets out the relevant intentions of the parties in regards to the beneficial interest, the next step is to follow Stack v Dowden. In this case, it was held in obiter that despite the parties declaring their intentions, this would not be upheld if evidence showed otherwise. Therefore, it is likely that instead a constructive trust is in place. The starting point when considering the quantification of the interest is the presumption that equity follows the law. Because Bob and Jane are joint legal title owners, this provides the assumption that the beneficial interest was also intended at the time of acquisition to be shared equally. Jane’s options as a result depend on what avenue Jane chooses to take. Bob wants to split the property equally and ‘return to his old life’. If she chooses this route, there is no legal issue as this follows the presumption. This was the case in Fowler v Barron where the lack of the rebuttal meant that the interest was split jointly, despite one party providing all contributions. Jane does not want to split the house equally, the onus is on her to bring evidence to assert that there was a common intention, or should be inferred to have been, not to share equally, and rebut the presumption. There is no place at all for the presumption of a resulting trust based on unequal contributions in joint names cases involving unmarried cohabitants.
Inference or Imputation
The court, when quantifying an interest, is entitled to ‘infer’ or ‘impute’ an intention of the parties by referencing all the circumstances of the case. It is arguable that the court would be able to objectively infer the conduct of the parties when entering into the agreement, however, the lack of dealings between the couple afterwards may suggest that imputed intention may be preferable. This is where the court uses their powers of discretion to conclude what the parties would have intended.
Quantifying the interest
Using Baroness Hale’s factors set in Stack v Dowden to deduce the quantification of the beneficial interest, the court could take into account the reasoning behind the joint tenancy and the purpose of the home. Clearly, at the time of the acquisition, the intention for the property was to set up a family unit and eventually have children, hence the joint tenancy. At the time there was a loving relationship. They have also previously lived together before, although there is an assumption here that despite this they have never pooled their finances as Jane keeps her savings separate. However, it was deduced in Walker v Hall that In the absence of specific evidence of the parties' intention it was not open to the court to hold that the house belonged beneficially to the parties in equal shares simply because it was bought as a family home and it was intended that their relationship should last for life. Jane could argue under Wodzicki v Wodzicki that there is no longer a loving relationship, with them essentially having no relationship at all for nearly 4 years. Further, if following the precedent in Huntington v Hobbs , despite there being a joint tenancy, it was held that the sale of the property should not be stopped, but delayed so that the plaintiff had the option to ‘buy out’ the defendant. This may be an alternative option to Jane if she wants to go down this route.
Financial contributions
The parties’ relevant contributions to the purchase price, both initially and subsequently, will also be taken into account. Bob did not contribute to the purchase price or the mortgage, with Jane initially contributing 20% and subsequently paying off the mortgage as the sole earner. However, these initial contributions to the purchase price may be difficult for Jane to rely on, namely because it was agreed between the couple that Bob would not contribute and instead spend his savings later because as per Kingsnorth Finance Co. v Tizard , direct contributions are seen as an investment. The fact that Bob has invested very little in the property suggests a lack of common intention. Bob did not have a steady real income throughout the relationship, with Jane providing the majority of the household’s income as an accountant. Jane could potentially argue here that there was no common intention to share equally as Bob did not spend his savings on the renovations as planned, but on bonds in his sole name. The fact that Bob does not tell Jane about his bond investment further suggests that there is no common intention, as otherwise he would have spent it on the property. In essence, his only contribution to the shared property is his minimal indirect contribution of labour, as staying home and looking after children is not recognised as an economic contribution. It is not known if these renovations significantly increased the value of the property. If the renovations did increase the value, this may be a snag in Jane’s case as it shows some investment in the property. Ultimately, it will be easier for the court to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. It may be difficult for Jane to assert otherwise.
Lack of dealings
However, in combination with the contributions to the purchase price, Jane could also rely on the fact that she alone managed the arrangement of finances. Bob was not involved in this organisation, with Jane maintaining ‘strict control.’ It could also be said that because Jane has always kept money aside in case of the breakdown of their relationship suggests that there was no strong-footed common intention to share the interest 50/50. There was no pooling of resources, with Jane keeping separate savings and Bob keeping separate investments. It is clear that the lack of dealings between the parties, Jane being the sole earner and finance organiser, all whilst bringing up a young child implies that the parties should be taken has having intended that their beneficial interest be altered to take account of the circumstances. As there is no course of dealings after Bob left for 4 years, and thus no conduct to review, the court does what is fair. Such was the case in Jones v Kernott , where the beneficial right of the family home under a constructive trust had to be considered. The Supreme Court held that the shares should be 90/10 as Jones had paid all bills, maintained the property alone and raised their children on her own for 12 years. Common intention will be deduced reasonably, as the beneficial interests have become ‘ambulatory’. This almost ‘fair’ approach was approved earlier in Oxley v Hiscock , where it was held that where there is no evidence of any discussion between them of the shares, that each is entitled to that share which the court considers fair having regard to the whole course of dealing. In this sense the courts, using their discretion, may acknowledge a constructive trust in this case because it is fair to do so. It has also been recently suggested that where a dependent is only living with one parent, the equitable interest split should perhaps reflect the difference that now exists in the parties’ roles in meeting the children’s needs. If following this principle, Jane certainly holds an advantageous position.
Conclusions
To conclude, it appears after detailing a breakdown of Baroness Hale’s factors when quantifying equitable interests, that Jane would be able to successfully rebut the presumption that the interest is shared equally. It is clear that despite sharing a home together, and having a child, the couple never shared their resources throughout their relationship. Jane was continually the sole provider, both initially and subsequently. Bob, despite stating he would spend his savings on the dwelling, never did so and instead secretly invested in bonds, so has suffered little detriment. Jane then continued to pay the expenses, mortgage, as well as raise the child alone for 4 years. It can be said that following Stack v Dowden and Jones v Kernott , Jane would be able to prove to the court that after buying the property, there was no common intention to share the equitable interest equally, and may be able to receive a larger share other than 50:50.