Unjust Enrichment for Cohabiting Couples: Reassessing the Common Intention Constructive Trust

Abstract

This thesis considers the use of unjust enrichment in the cohabitation context in England and Wales. The increasing prevalence of unmarried cohabitation combined with continuing Government refusal to reform the law means that there remains a danger of significant vulnerability at the end of cohabiting relationships, particularly where one party has not contributed financially to acquisition of the property. The lack of legislative reform means that development of the law will have to come from the courts. The current law requires parties to use the law of trusts to argue over the beneficial interest of their home. In order to move the law forward and respond to the vulnerability often experienced by the less economically powerful partner, new and creative ways forward are needed. The doctrine of unjust enrichment has been used for disputes between cohabiting couples in Canada and Scotland and has often been the subject of academic attention. This thesis undertakes a sustained, detailed examination of how the doctrine might work in this context in England and Wales, looking at each of the constituent elements of an unjust enrichment claim and using restitutionary scholarship to provide a new perspective on cohabitation disputes. Criticisms of the common intention constructive trust – the current doctrine used in this area – are drawn on to question whether unjust enrichment might provide novel development initiatives for longstanding institutional issues with the trust. This thesis therefore considers the legal valuation of caring and other domestic responsibilities within the home, the nature of intention and the resulting power balance between the parties, and the focus within the current law on questions of ownership. The aim is to question whether unjust enrichment might provide a way forward for the law which corrects some of the problems with the current law and is therefore advantageous for litigants.