Burns v Burns: CA 1984

Long Relationship Not Enough for Interest in Home

The parties lived together for 17 years but were not married. The woman took the man’s name, but beyond taking on usual household duties, she made no direct financial contribution to the house. She brought up their two children over 17 years. Latterly she went to work, but her earnings went on normal household expenses.
Held: She had acquired no interest in the family home. There was no express agreement to qualify the fact that the house was bought in the man’s sole name. Some substantial contribution was required before an intention that she was to take a share could be imputed.
Fox LJ said: ‘The house with which we are concerned in this case was purchased in the name of the defendant and the freehold was conveyed to him absolutely. That was in 1963. If, therefore, the plaintiff is to establish she has a beneficial interest in the property she must establish that the defendant holds the legal estate upon trust to give effect to that interest. That follows from Gissing v. Gissing [1971] A.C. 886. For present purposes I think that such a trust could only arise (a) by express declaration or agreement or (b) by way of a resulting trust where the claimant has directly provided part of the purchase price or (c) from the common intention of the parties.
In the present case (a) and (b) can be ruled out. There was no express trust of an interest in the property for the benefit of the plaintiff; and there was no express agreement to create such an interest. And the plaintiff made no direct contribution to the purchase price. Her case, therefore, must depend upon showing a common intention that she should have a beneficial interest in the property. Whether the trust which would arise in such circumstances is described as implied, constructive or resulting does not greatly matter. If the intention is inferred from the fact that some indirect contribution is made to the purchase price, the term ‘resulting trust’ is probably not inappropriate. Be that as it may, the basis of such a claim, in any case, is that it would be inequitable for the holder of the legal estate to deny the claimant’s right to a beneficial interest.’
May LJ said: ‘For my part, I agree that the principles which the courts must apply are those laid down in Pettitt v Pettitt [1970] AC 777 and Gissing v Gissing [1971] AC 886. Those two cases concerned disputes between couples who had in fact been married, where the claims were made under section 17 of the Married Women’s Property Act 1882 and not under the matrimonial legislation. But it is quite clear that the House of Lords decided that section 17 is merely a procedural section giving the courts no overriding general discretion in such circumstances and that the principles to be applied are ill general the same whether the couple have been married or not.’ and
‘In the light of all these cases, I think that the approach which the courts should follow, be the couples married or unmarried is now clear. What is difficult, however, is to apply it to the facts and circumstances of any given case. Where the family home is taken in the joint names, then unless the facts are very unusual I think that both the man and the woman are entitled to a share in the beneficial interest. Where the house is bought outright and not on mortgage, then the extent of their respective shares will depend upon a more or less precise arithmetical calculation of the extent of their contributions to the purchase price. Where, on the other hand, and as is more usual nowadays, the house is bought with the aid of a mortgage, then the court has to assess each of the parties’ respective contributions in a broad sense; nevertheless the court is only entitled. to look at the financial contributions or their real or substantial equivalent, to the acquisition of the house; that the husband may spend his weekends redecorating or laying a patio is neither here nor there, nor is the fact the woman has spent so much of her time looking after the house, doing the cooking and bringing up the family.
The inquiry becomes even more difficult when the home is taken in only one of the two names. For present purposes I will assume that it is the man, although the same approach will be followed if it is taken in the name of the woman. Where a matrimonial or family home is bought in the man’s name alone on mortgage by the mechanism of deposit and installments, then if the woman pays or contributes to the initial deposit this points to a common intention that she should have some beneficial interest in the house. If thereafter she makes direct contributions to the instalments, then the case is a fortiori and her rightful share is likely to be greater. If the woman, having contributed to the deposit, but although not making direct contributions to the instalments, nevertheless uses her own money for other joint household expenses so as to enable the man the more easily to pay the mortgage instalments out of his money, then her position is the same. Where a woman has made no contribution to the initial deposit, but makes regular and substantial contributions to the mortgage instalments, it may still be reasonable to infer a common intention that she should share the beneficial interest from the outset or a fresh agreement after the original conveyance that she should acquire such a share. It is only when there is no evidence upon which a court can reasonably draw an inference about the extent of the share of the contributing woman that it should fall back on the maximum ‘equality is equity.’ Finally, when the house is taken in the man’s name alone, if the woman makes no ‘real’ or ‘substantial’ financial contribution towards either the purchase price, deposit or mortgage instalments by the means of which the family home was acquired, then she is not entitled to any share in the beneficial interest in that home even though over a very substantial number of years she may have worked just as hard as the man in maintaining the family in the sense of keeping the house, giving birth to and looking after and helping to bring up the children of the union.
On the facts of the instance case, which Waller L.J. has outlined, I think that it is clear that the plaintiff falls into the last of the categories to which I have just referred and accordingly I too would dismiss this appeal. When one compares this ultimate result with what it would have been had she been married to the defendant, and taken appropriate steps under the Matrimonial Causes Act 1973, I think that she can justifiably say that fate has not been kind to her. In my opinion, however, the remedy for any inequity she may have sustained is a matter for Parliament and not for this court’.

Waller, Fox, May LJJ
[1984] 1 All ER 244, [1983] EWCA Civ 4, [1984] Ch 317, [1984] 2 WLR 582
Law of Property Act 1925, Trustees Act 1925
England and Wales
AppliedPettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
AppliedRichards v Dove ChD 1974
. .
AppliedFalconer v Falconer CA 1970
. .
AppliedHazell v Hazell CA 1972
The parties disputed the shares they should take in a family home.
Held: Shares should normally be ascertained at the time of separation – not at the date when they acquired the house. If a wife contributes directly or indirectly, in money or . .
AppliedGissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .

Cited by:
CitedGow v Grant SC 24-May-2012
The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed.
Held: The appeal succeeded. The Act did . .

Lists of cited by and citing cases may be incomplete.

Family, Trusts

Leading Case

Updated: 01 November 2021; Ref: scu.188801