TRUSTS, THIRD PARTIES AND THE FAMILY HOME: SIX YEARS SINCE CUMMINS AND CONFUSION STILL REIGNS

Abstract

In Trustees of the Property of Cummins v Cummins, the High Court of Australia developed an arguably new trusts principle in relation to third-party claims against the family home. This article explores the doctrinal implications of the principle, arguing that it has led to considerable confusion and uncertainty in subsequent case law and in the academic literature. The article also evaluates the substantive effects of the principle, arguing that it is undesirable that some women who attempt to resist third-party claims to the family home are worse off under it. The article concludes by proposing a legislative solution to remedy the doctrinal confusion and substantive deficits in this area of..