A common intention or a rare bird? Proprietary interests, personal claims and services rendered by lovers post-acquisition: James v Thomas; Morris v Morris [2009] CFLQ 104

Over a year ago the House of Lords gave its landmark decision in Stack v Dowden where it was held that the common intention constructive trust was the most appropriate tool of analysis in cases regarding the ownership of the family home. Despite the case concerning the quantification of the parties' beneficial shares, their Lordships also made a number of comments relating to the initial question of the establishment of a beneficial interest. On the one hand, Lord Walker and Baroness Hale indicated that a broader approach to the finding of a common intention should be undertaken, a view that was confirmed by the Privy Council in Abbott v Abbott. On the other hand, Baroness Hale held that there is a heavy burden on the person seeking to establish a common intention that the beneficial shares are held differently to the legal title, which could make establishing a beneficial interest in the context of sole legal ownership much more onerous and consequently to the detriment of non-owning parties. The Court of Appeal decisions in James v Thomas and Morris v Morris suggest that the lower courts have not taken the opportunity of adopting a broader approach to intention and that the non-owning claimant may in fact be in a worse position than before Stack. This article considers the application of the common intention constructive trust and whether any other forms of relief were available to the claimants in those cases.