The law has always been susceptible to criticism, some of which resulted in reform and others just intellectual opinions. When hearing cases, members of the court look for flaws in the law and use their ability to create common law to correct faults and errors. The regulations governing constructive trusts are no exception. The law was unclear until Lord Bridge’s decision in Lloyds Bank PLC v Rosset established the acquisition test. Although the test was developed relatively recently, it has been accused of being intrinsically sexist and commercial, eliminating non-owned partners.
Even if they do not own the formal title, constructive trusts give a party a proprietary stake. The courts had to consider in the Rosset case whether Mrs. Rosset’s domestic efforts were enough to demonstrate a joint intention in the absence of an express agreement. The court ruled against Mrs. Rosset, establishing the acquisition test, which states that in establishing a common intention in property, one must first get a shared ownership agreement.
The person claiming a benefit should show direct payments to the purchase price as proof, and anything less is unlikely to qualify. Despite her domestic efforts, Mrs. Rosset had no claim to the property as a result of the test. This decision has drawn much criticism, with concerns that it excludes women and is unduly commercial in a family setting.
Although feminist legal experts argue that the test eliminates non-propertied partners, due to the link between the gender division of labor and women’s economic standing, such partners are mainly female. Numerous studies have found that the domestic division of labor keeps women at home. People are still unable to work due to reducing their ability to acquire a house. Sociologists have shown that even when women are economically productive, they engage in more ‘feeling work,’ such as nursing, which is paid less.
It may be argued that Lord Bridge’s test is a perfect example of the law perpetuating inequality, resulting in the conclusion that a woman’s place is frequently in the house. However, she will lose interest if she remains there. Young and Willmott discovered a path to an asymmetrical family, in which men and women play equal roles. If that is the fact, women may no longer be as economically disadvantaged as they were previously.
Furthermore, if this were the case, Lord Bridge’s criteria would not influence the exclusion of primary women. According to the study, “The Office for National Statistics found in 2013 that the percentage of women ages 16 to 64 in employment had increased from 53% in 1971 to 67% whereas the percentage of men had fallen to 76% from 92%. However, the World Bank Gender Data Portal found that women in most countries earn only 60 to 75% of men’s wages, thus we can see how despite women’s increased employment, they would still earn less and be excluded from purchasing property, supporting the argument that Lord Bridge’s test is sexist.”
The criticism that the test “reveals the inextricable solid tug of money” (Lord Woodhouse, Hoffman v Hoffman) and “paints a commercial gloss over a family dispute” (Lord Woodhouse, Hoffman v Hoffman), and as a result of this reasoning, individuals who may not be able to contribute to the buying price are excluded. Prioritizing money in this manner has long been seen as unethical in the eyes of the law. The Statute Commission recognized that the existing law did not adequately address the typical informality of residents.
The alternative is to follow the parties’ personal goals while ignoring monetary contributions, which is deemed “inappropriate” since “the parties’ relationship is not one in which they would deal with each other by organized thought” (Gardner). Indeed, many people do not consider their required portions when deciding to share a home.
Stack v Dowden indicates a departure from Lord Bridge’s criteria and critique in that it considers just monetary donations. When determining a portion of beneficial interest, Lady Hale decided that a judge must consider the entire course of behavior, not just direct cash contributions. She also listed a few more things to look at, minimizing the commercial component of Lord Bridge’s test by looking into the more domestic reasons for the acquisition. Even though Thomson v Humphrey was heard after Stack v Dowden, the court highlighted returning to Lord Bridge’s criteria.
The Supreme Court has considered many attempts to reduce the exclusion of non-propertied partners and the commercial gloss of Lord Bridge’s criterion, but the current situation is ambiguous. Despite the criticism, cases are still being segregated from Stack, and the Rosset acquisition test is still being applied.
To summarize, a clear Supreme Court case is required to define the law and eliminate any ambiguities. Lower courts must battle to apply the various standards with protracted and costly cases for the time being. An appeal has been successful all the way to the Supreme Court. Even if a case reaches that stage, it is unclear if the justices will be able to make any progress. Despite much misunderstanding and after Rosset, the court in Jones v Kernott confirmed Stack v Dowden.
References
‘Beneficial Interest In Property‘ (Osbornes Law, 2022). Web.
‘Does Land Law Enforce Inequality? A Discussion On Lloyds Bank PLC V Rosset.’ (Gladchii.wixsite.com, 2022). Web.
‘Land Registration Act 1925 (Repealed)’ (Legislation.gov.uk, 2022). Web.
‘Lloyds Bank V Rosset’ (CASEMINE, 2022). Web.
‘Lloyds Bank V Rosset‘ (Lawteacher.net, 2022). Web.
Matthew Mills, ‘Single Name Family Home Constructive Trusts: Is Lloyds Bank V Rosset Still Good Law?’ (2018) 82 Thomson Reuters and Contributors