Introduction

This chapter is concerned with the role played by imputed trusts in resolving disputes over the ownership of family property. By ‘family property’, we mean property acquired by spouses or unmarried cohabiting partners during the course of their relationship, usually (but not always) for their joint use. The disputes with which we are concerned often arise between unmarried partners rather than spouses because, for reasons we shall explore, questions of ownership by married couples are dealt with in other ways. Also, because of the costs involved, these disputes are litigated only when there is property of significant value at stake; and for many couples, the most significant asset will be the owner-occupied family home. Hence, most disputes are over the parties' respective entitlements, on the breakdown of a non-marital cohabiting relationship, to the money value (ie sale proceeds minus any outstanding mortgage) of the family home. There may also be cases where issues of ownership arise in disputes between family members and a third party (such as a mortgage lender): here, the question of ownership is just as important for spouses as for unmarried couples.

The origins of the imputed trust (in the shape of the ‘resulting use’) can be traced back to the latter half of the fifteenth century (see Baker An Introduction to English Legal History (4th edn, 2002) p 251). This chapter, therefore, provides a further illustration of the theme, pursued elsewhere in this book, of the adaptability of ancient trust-forms to new functions.