The Secondary-rights Approach to the “Common Intention Constructive Trust"
Conveyancer and Property Lawyer | Sweet and Maxwell | Published : 2015
It is a well-worn criticism that the English law of constructive trusts in the context of family homes purchased otherwise than by married couples and those in a civil partnership is in a state of flux. Despite having used for over 40 years the “common intention constructive trust” (CICT) device to provide an equitable division when the relationships of cohabitants break down, serious questions remain over the legitimacy of the exercise of judicial discretion. This is caused particularly by the judicial willingness to infer and even impute intention to reflect context-specific policy considerations, which upsets consistency and certainty in the law. This paper suggests that understanding the..View full abstract