Wansbroughs

CONSTRUCTIVE TRUSTS, DECONSTRUCTED

Tom Britten, an Associate in the Private Client team at Wansbroughs Solicitors considers the way forward when a relationship breaks down and an agreement needs to be reached regarding the future of the family home.

The courts do not have the same powers to distribute a cohabiting couple’s property as they have to distribute a married couple’s or civil partners’ property. Instead, the courts have to rely on the concept of constructive trusts.

In the absence of a Declaration of Trust (setting out the parties’ intentions), the court may impose a constructive trust where it would be unfair to allow one party to deny that another party has an interest in the property. In reaching a decision, the court will infer the cohabitees’ intention from other circumstances; such as financial and non-financial contributions to the former family home. As a last resort, the court can impose a constructive trust based on what it considers to be fair.

Recording the ownership of the family home in a Declaration of Trust could avoid expensive and uncertain litigation in the unfortunate event of relationship breakdown. If you would like help preparing a Declaration of Trust, call us on 01380 733300 or email wealth@wansbroughs.com.

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Tom Britten