Gissing v Gissing

A spouse without legal title to a matrimonial home acquires a beneficial interest only through the ordinary principles governing resulting, implied or constructive trusts. Matrimonial property does not form a special class of family assets.

A common intention to share ownership may be expressed or reasonably inferred from the parties’ words and conduct. The court cannot invent an intention merely because sharing would be fair. Substantial direct contributions to the price or mortgage may support the inference. Indirect expenditure may also count where an arrangement makes it referable to acquiring the home. Ordinary household expenditure, furniture and improvements do not alone suffice.

Only after an intention to share has been established does the court determine the proportions. Equality is not an automatic rule.

Gissing v Gissing concerned a former wife’s claim to a beneficial interest in the matrimonial home. The house had been conveyed into her husband’s sole name. He alone paid the deposit, repaid an employer’s loan and discharged the mortgage instalments. The wife bought furniture and appliances, paid for work on the lawn and met some family expenses from her earnings.

Buckley J held that the evidence did not establish a constructive trust. The Court of Appeal, by a majority, reversed that decision and awarded the wife a half-share, treating the house as a family asset: [1969] 2 Ch. 85. Edmund Davies LJ dissented.

The central issue before the House was whether the parties’ conduct established a resulting, implied or constructive trust under which the wife possessed a beneficial share.

1. Appeal allowed unanimously. All five Law Lords concluded that the evidence established neither a common intention to share the beneficial ownership nor any substantial contribution by the wife referable to the acquisition of the house.

2. Per Viscount Dilhorne and Lord Diplock, the ordinary law of property and trusts applies equally to spouses, former spouses and strangers. A matrimonial home is not placed in a special legal category by describing it as a family asset. The legal owner is prima facie entitled to the whole beneficial interest unless a trust in favour of the claimant is established. Lord Morris of Borth-y-Gest likewise held that the court must ascertain the arrangements actually made and cannot alter ownership without statutory authority.

3. Per Lord Diplock, a person without legal title must rely on a resulting, implied or constructive trust. An express declaration of trust by way of gift of a beneficial interest in land must comply with section 53(1) of the Law of Property Act 1925. An unwritten common arrangement may nevertheless generate a trust where the legal owner’s words or conduct induce the claimant to act detrimentally in the reasonable belief that a beneficial interest is being acquired.

4. Per Viscount Dilhorne and Lord Diplock, a common intention may be proved by an express agreement or reasonably inferred from objectively manifested words and conduct. The court cannot ascribe an intention which the parties never manifested merely because sharing appears fair or because they might have agreed to it had they considered the question. Direct contributions to the deposit or mortgage may support the inference. Indirect expenditure may also be relevant where the spouses’ arrangement connects it to meeting the acquisition cost. Lord Pearson similarly treated substantial purchase contributions as raising a rebuttable presumption of a resulting trust.

5. The wife made no payment towards the deposit, employer’s loan or mortgage and assumed no liability for them. Her purchase of furniture and appliances, payment for the lawn, and expenditure on clothing and extras did not show an intention to acquire an interest in the land. Per Lord Diplock, the evidence instead showed that the spouses retained separate proprietary interests. The husband therefore held the sole beneficial interest.

6. Lord Diplock added that, once an intention to share is established, the court should first infer the intended proportions from the parties’ conduct. Equality operates only as a rule of law where no such inference is possible. Lord Pearson and Lord Reid likewise rejected an automatic half-share. Lord Reid, while agreeing in the result, would have permitted a wider imputation of intention in appropriate cases and questioned any rigid distinction between direct and indirect contributions.

7. The sole beneficial interest was declared vested in the husband. Sale of the house was stayed for three months to permit the wife to seek relief in the matrimonial proceedings. The husband was awarded his costs before Buckley J and in the Court of Appeal.

• House of Lords: The appeal was allowed unanimously. The Court of Appeal’s decision was reversed, and the husband was held entitled to the sole beneficial interest in the house: [1971] AC 886.
• Court of Appeal: By a majority comprising Lord Denning MR and Phillimore LJ, the court awarded the wife a half-share on the basis that the house was a family asset. Edmund Davies LJ dissented: [1969] 2 Ch. 85.
• Chancery Division: Buckley J rejected the wife’s claim because her conduct and expenditure were insufficient to establish a constructive trust.