The Common Intention Constructive Trust

• Pages: 274-298

CHAPTER 11

THE COMMON INTENTION CONSTRUCTIVE TRUST

1. APPLICABILITY OF THE COMMON INTENTION

CONSTRUCTIVE TRUST TO CC JURISDICTIONS

While the common intention constructive trust remains a relevant property adjustment regime

for the CC jurisdictions, its importance and applicabilityas a mechanism for property division,

whether upon termination of a marriage or cohabitation, has been significantly diminished by

statutory intervention in most of the CC jurisdictions, whether with respect to the married

spouse only or including the statutory spouse in the case of the statutory spouse jurisdictions

of Barbados, Belize, Guyana, Jamaica and Trinidad and Tobago.

In brief, with respect to the spousal and common law relationship, the following, by juris-

dictions, is the applicability of the common intention constructive trust regime, to:

a. Antigua and Barbuda, Montserrat, St Kitts and Nevis–The common intention construc-

tive trust applies whether the applicant is a married spouse or common law spouse;

b. Anguilla, BVI, Dominica, Grenada, St Lucia, SVG and The Bahamas – the common

intention constructive trust applies where the applicant is a common law spouse;1

c. Barbados, Belize, Jamaica, Trinidad and Tobago – the common intention constructive

trust applies to persons who qualify neither as married spouses nor statutory spouses;2

d. Guyana – the common law constructive trust has been effectively replaced by legislation

and codified with respect to persons who do not qualify for a statutory property division

order of a specified share of the net assets of the parties, whether such person is a married

spouse or a common law spouse who fails, in either case, to come within the qualifying

statutory definition of spouse.

2. THE COMMON INTENTION CONSTRUCTIVE TRUST: ITS

ORIGINS

There are essentially two broad categories of constructive trust – the institutional or the

common intention constructive trust, which is the model applicable to England and the CC

jurisdictions although there was a concerted, but failed attempt on the part of Lord Denning

to introduce to England, what has been labelled “The New Model Constructive Trust” and the

remedial type constructive trust model of several Commonwealth jurisdictions, most notably

Canada, Australia and New Zealand.

The common intention constructive trust, also referred to as the social context construc-

tive trust first emerged, in its own right in the late 1960s, as a specialised for m of trust

applicable to the spousal and common law relationship, following the landmark decisions of

the House of Lords in Pettitt v Pettitt3and Gissing v Gissing4respectively. Both decisions were in

1 See Dunbar v Webster Al 2011 HC 5.

2 See the Jamaican cases of Campbell v Mc Callum and Whitmore JM 2011 SC 22 and Williams v Thompson JM

2011 SC 88, both cases of visiting relationships where the applicant qualified neither as the de jure spouse

nor statutory spouse.

3[1969] 2 WLR 966, [[1970] AC 777, HL.

4 [1970] 3 WLR 255, [1971] AC 886, HL.

large part judicial responses to the social realities of the 1960s, which included the growing

economic contribution of women to the marriage, the increase in cohabitational relationships

and the reconfiguration of the family unit and what Lord Reid described in Pettitt as the “unsat-

isfactory state”5of the law of family assets. The law of family assets was indeed in an

unsatisfactory state at the time of Lord Reid’s judicial observationin that both Pettitt and Gissing

were decided prior to the passage in 1970 of the MPPA, England, which Actconsolidated with

the 1969 Divorce Reform Act, and for the first time, enacted provisions forthe granting, by the

court of spousal property adjustment orders, essentially replacing in the case of married

spouses, the common intention constructive trust as a legal mechanism for spousal property

division.

3. COMMON INTENTION CONSTRUCTIVE TRUST: DEFINITION

AND PURPOSE

The common intention constructive trust creates proprietary rights by providing the means by

which a legal owner of property will be deemed to hold part of such property on trust for the

applicant despite the absence of any express intention.6It comes into operation on the occur-

rence of specified events and without the intervention of the court in that the court gives effect

to the trust once the facts necessary to prove it exists, are proven in accordance with the appli-

cable rules of evidence. Accordingly the court does not impose the trust but instead recognises

that the claimant enjoys a pre-existing proprietary interest in what is deemed to be trust prop-

erty, and most significantly, since the trust does not come into effect by order of the court, it is

capable of taking priority over third party interests acquired between the time of its creation

and its recognition by way of judicial declaration.

The common intention constructive trust is based on the proposition that “any claim to a

beneficial interest in land by a person whether a spouse or stranger in whom the legal estate in

land is not vested must be based on the proposition that the person in whom the legal estate is

vested holds it as trustee on trust to give effect to the beneficial interest of the claimant.”7

It is comprised of two components, both of which must be proven, firstly, the common

intention of the parties that the claimant should have a beneficial interest in the subject prop-

erty, and secondly, detrimental reliance on the part of the claimant, that is that the claimant

acted to his or her detriment in reliance that he or she had a proprietary interest in the subject

property.

The common intention constructive trust is to be distinguished from the resulting trust

model, notwithstanding Lord Denning M.R. protestations in Hussey v Palmer that “this is more

a matter of words than anything else. The two run together. By whatever name it is described,

it is a trust imposed whenever justice and good conscience require it.”8

4. DISTINGUISHING THE COMMON INTENTION

CONSTRUCTIVE TRUST FROM THE RESULTING TRUST

Unlike the common intention constructive trust, the resulting trust is based on legal

Chapter 11: The Common Intention Constructive Trust 275

5 [1970] AC 777, HL at 793.

6 See Rochefoucauld v Boustead [1897] 1 Ch 196.

7 per Lord Diplock in Gissing v Gissing [1971] AC 886, HL at 904–905.

8 [1972] 3 All ER 744; [1972] 1WLR, HL(E) 1286 at 1289 – 1290.