FLK2 Trusts of the Family Home Trusts
Ownership of the family home
Family homes can be owned in multiple different ways which include
1. Joint ownership =
- owning both the legal and beneficial interests as joint tenants with equal inseparable shares
- Owning distinct, separate shares that can be unequal as tenants in common
- If two or more people own the land in these ways it is HELD IN TRUST
2. Sole ownership
- If one partner is the sole legal owner they ay still be holding the property on trust for both partners (other
partner has a beneficial interest).
- If there is no express trust the law determines each partner’s beneficial interest.
For married couples’ family courts have broad powers under the Matrimonial Causes Act 1973 to decide how the
family home is to be divided during divorce.
, FLK2 Trusts of the Family Home Trusts
These powers can be used to quantify the beneficial interests in the family home and apply whether or not the
couple created an express trust over the home when they purchased it.
Unmarried couples will rely on standard trust laws
Express Trusts
The beneficial interests must have been DEFINED in a valid WRITTEN declaration. S.53(1)(b) Law Property
Act 1925
Resulting Trusts
The other partner must have directly contributed financially to the purchase price at the time of purchase.
(mortgage payment contributions, SDLT, conveyancing fees don’t count).
Resulting trusts only care for MONETARY CONTRIBUTIONS completely ignore non-financial contributions to
the family (e.g looking after children)
When determining the size of a share in the property arising under a resulting trust, the court will take a
mathematical approach to determining the share based on financial contributions to the purchase at the time
of the purchase.
Common law constructive trusts
Courts imply what they believe the parties would have intended (courts are able to take into account
contributions other than the purchase price).
For trusts of the family home common intention constructive trusts are usually the most relevant over
resulting trusts.
Ownership of the family home
Family homes can be owned in multiple different ways which include
1. Joint ownership =
- owning both the legal and beneficial interests as joint tenants with equal inseparable shares
- Owning distinct, separate shares that can be unequal as tenants in common
- If two or more people own the land in these ways it is HELD IN TRUST
2. Sole ownership
- If one partner is the sole legal owner they ay still be holding the property on trust for both partners (other
partner has a beneficial interest).
- If there is no express trust the law determines each partner’s beneficial interest.
For married couples’ family courts have broad powers under the Matrimonial Causes Act 1973 to decide how the
family home is to be divided during divorce.
, FLK2 Trusts of the Family Home Trusts
These powers can be used to quantify the beneficial interests in the family home and apply whether or not the
couple created an express trust over the home when they purchased it.
Unmarried couples will rely on standard trust laws
Express Trusts
The beneficial interests must have been DEFINED in a valid WRITTEN declaration. S.53(1)(b) Law Property
Act 1925
Resulting Trusts
The other partner must have directly contributed financially to the purchase price at the time of purchase.
(mortgage payment contributions, SDLT, conveyancing fees don’t count).
Resulting trusts only care for MONETARY CONTRIBUTIONS completely ignore non-financial contributions to
the family (e.g looking after children)
When determining the size of a share in the property arising under a resulting trust, the court will take a
mathematical approach to determining the share based on financial contributions to the purchase at the time
of the purchase.
Common law constructive trusts
Courts imply what they believe the parties would have intended (courts are able to take into account
contributions other than the purchase price).
For trusts of the family home common intention constructive trusts are usually the most relevant over
resulting trusts.
