Burns v Burns

For an unmarried couple, a court cannot redistribute a family home merely because that result appears fair, and English law recognises no general family-property doctrine. A claimant without legal title must establish a trust by express agreement, a direct or indirect financial contribution referable to acquisition, or a common intention objectively inferred from conduct. Deposit, mortgage and substantial household contributions that enable mortgage payments may suffice. Ordinary housekeeping, childcare, decorating and domestic purchases do not, without more, establish such an intention. A representation that an interest will be acquired, linked to work on the property, may produce a different result. The statutory property-adjustment jurisdiction under Matrimonial Causes Act 1973 does not apply to unmarried couples.

Mrs Burns appealed from Dillon J’s Chancery Division decision of 1 March 1982, which held that she had no interest in the house purchased in Mr Burns’s sole name. The parties had lived together as man and wife for 17 years in the house and had raised two children. Mrs Burns made no direct contribution to the purchase price or mortgage, but bought household items, decorated the property, kept house and cared for the children. The issue was whether those matters established a beneficial interest by resulting or constructive trust, or justified a fair redistribution comparable to matrimonial property law.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. Waller LJ, having considered the draft judgments of Fox LJ and May LJ, agreed that the law did not permit a deemed intention to be imputed on these facts.
2. Governing principles. May LJ held that Pettit v Pettit (1970) AC 777 and Gissing v Gissing (1971) AC 886 applied generally to disputes between married and unmarried couples. Section 17 of the Married Women’s Property Act 1882 was procedural and did not confer a general discretion to redistribute property according to fairness. English law also recognised no general concept of family property. Any claim therefore had to be determined under ordinary principles governing trusts and proprietary rights.
3. Sole legal title and contributions. Fox LJ stated that a trust could arise through an express declaration or agreement, a resulting trust based on a direct contribution to the purchase price, or a common intention inferred from conduct. A sole-name owner was prima facie the sole beneficial owner. Acquisition-related contributions could include a deposit, mortgage instalments, repayment of the mortgage, or substantial household expenditure which enabled the owner to meet the mortgage. The evidence could be considered broadly up to separation, but it had to be referable to acquiring or financing the home.
4. Domestic work. Ordinary housekeeping, childcare, decorating and the purchase of domestic chattels did not, without more, evidence an intention to alter existing property rights. May LJ treated the broader suggestion in Hall v Hall (1982) 3 FLR 379 as wrong. A different result could arise where labour was linked to a representation or express or implied arrangement that the claimant would acquire an interest, as in Eves v Eves (1975) 1 WLR 1338.
5. Application and order. Mrs Burns had made no direct or indirect acquisition-related financial contribution. The defendant had paid the mortgage and supplied the housekeeping money. Her domestic work, purchases and decoration were insufficient to establish a trust. The appeal was dismissed with costs, not to be enforced without leave. Leave to appeal to the House of Lords was refused.

• Court of Appeal: Appeal from Dillon J’s decision was dismissed. Costs were ordered, not to be enforced without leave, and leave to appeal to the House of Lords was refused.
• Chancery Division: Dillon J held on 1 March 1982 that Mrs Burns had no interest in the house.