Trusts of the Family Home, the 'Familialisation' of Property Law and the Potential for Judicial Development

Abstract

This thesis seeks to critically evaluate the current law governing trusts of the family home and its application to ownership disputes between former cohabitants. This exploration will be examined through the theoretical lens of ‘familialisation’, a term coined by Dewar to describe the modification of property law principles to respond to the familial dimension of ownership disputes.1 To support this thesis in analysing the contemporary issues visible in the modern trusts framework, the thesis will assess the historical development of familialisation. It will draw upon recent academic scholarship to evaluate contemporary criticism of the process of ‘familialisation’ of property law and the modern common intention constructive trust. A central debate intertwined within this area is the relationship between rules and discretion, which has been utilised to characterise and rationalise the tension between property law and family- centric concerns. This thesis will therefore explore how the judiciary could continue to shape this familialisation process so as to protect economically vulnerable cohabiting parties. It will be argued that in order to ascertain the ideal balance between legal certainty, ensured through rules, and flexibility, offered by discretion, further structuring of judicial discretion should be undertaken. This would involve a re-evaluation of the principles considered when determining the acquisition and quantification of a beneficial interest of a party in the family home, providing guidelines for the judiciary whilst retaining a degree of latitude to accommodate the diverse needs of modern families owning and sharing property. Ultimately, this thesis will conclude that further judicial clarification is necessary to address the current deficiencies of trusts of the family home and simultaneously adapt the framework to better respond to the nature of home-sharing.