11 - Trusts of the family home

Summary

Key points

• there is no specific law concerning rights in the family home;

• married and civil partners can claim rights in the family home under statute;

• unmarried partners and family members must rely on property law in order to be awarded rights in the family home;

• rights in the family home may arise under an express trust if the declaration complies with formalities;

• rights may arise under an implied trust (either a constructive trust or a resulting trust);

• a constructive trust will only arise where there is proof of common intention that both parties are to share the property;

• a resulting trust is based on proof of contributions towards the purchase price;

• quantification of the shares under a resulting trust depend on the size of the contribution;

• quantification of the shares under a constructive trust depends on proof of the parties’ intention; and

• rights in the family home may also arise under proprietary estoppel.

Introduction to trusts of the family home

The family home is one of the most significant assets that people own. However, surprisingly unlike other jurisdictions there is no separate law in England and Wales concerning ownership of the family home. Rights in the family home do not arise automatically within a relationship where both parties are living or have lived together in the home in the past.