1. Section 28(3).

2. Eg where the marriage has not broken down or the adjustive powers of the courts are inapplicable because a spouse's remarriage.

3. Tinsley v Milligan [1992] Ch 310, CA; [1993] 3 WLR 126, HL. Cf Re Sharpe [1980] 1 WLR 219, Risch v McFee [199] 1 FLR 105 and Richards v Dove [1974] 1 All ER 888, where the financial contributions made were construed by the courts as being loans rather than for the purpose of acquiring a share in the property. This raises the question of the construction to be given to contributions made for the purposes of ascertaining whether a resulting trust actually arises.Google Scholar

4. Hofman v Hofman (1965) NZLR 795, per Woodhouse J at 800.

5. [1991] I AC 107.Google Scholar

6. [1971] AC 886.

7. [1970] AC 777.

8. [1975] I WLR 1338.Google Scholar

9. [1986] Ch 638.

10. In both Eves and Grant v Edwards, the defendants had given excuses to the plaintiffs for not sharing the legal title in the properties and the plaintiffs had made indirect contributions rather than direct financial contributions. However, the courts construed the fact that excuses had to be given for not sharing the legal title as evidence of some common intention to share.

11. [1981] AC 487.

12. Per Lord Bridge, at 133.

13. Gardner, S ‘Rethinking Family Property’ (1993) 109 LQR 263.Google Scholar

14. Burns v Burns [1984] Ch 317.

15. See above n 10. Although Eves and Grant v Edwards were decided prior to Rosser and therefore cannot be attributed to it per se, these cases were not expressly overruled in Rosset. Thus, it would seem that the reasoning of the courts in both these cases for finding a common intention remains sound.

16. Clarke, P ‘The Family Home: Intention and Agreement’ (1992) 22 Fam Law 72 at 74.Google Scholar

17. Above n 13 at 265.

18. Per Dickson, J, Pertkus v Becker (1980) 117 DLR (3d) 257 at 270.Google Scholar

19. Neave, M ‘Living Together - the Legal Effects of the Sexual Division of Labour in Four Common Law Countries’ (1991) 17 Monash Univ LR 14.Google Scholar

20. K O'Donovan Sexual Divisions in Law (London: Weidenfeld & Nicolson, 1985). Sexual division of labour refers to the system whereby the parties take on distinct roles of responsibility in which the female partner is the primary partner caring for the family and the male partner is the main wage-earner responsible for bringing home the family's income.

21. Ibid, ch 5; H Land Parity begins at home (London: EOC/SSRC, 1981).

22. Women and Men in Britain 1995 (London: EOC, 1995).

23. Labour Force Survey, Spring Quarter (London: HMSO, 1994).

24. A Morris ‘Women and Labour’ paper presented at the University of Kent, Canterbury, 5 March 1997.

25. New Earnings Survey, 1996 (London: HMSO, 1996).

26. New Earnings Survey, 1995 (London: HMSO, 1995).

27. J Eekelaar ‘A Woman's Place — A Conflict between Law and Social Values’ (1987) Conv 93 at 94.

28. Neave above n 19.

29. O'Donovan above n 20 at 118.

30. Aboven 13.

31. A Bottomley ‘Self and Subjectivities: Languages of Claim in Property Law’ (1993) 20 JLS 56.CrossRefGoogle Scholar

32. Ibid at 62.

33. Ibid at 64.

34. J Pahl Money and Marriage (Basingstoke: Macmillan Education, 1989). Pahl identifies four basic typologies of management systems: the wife-management system; the allowance system; the pooling system; and the independent management system. For further details on the classification of each system, see pp 67–77.

35. Ibid, ch 9.

36. Ibid. pp 104–109. Pahl notes that male control is more common in families with relatively higher income levels and is usually associated with the allowance and independent management systems. Male control is also evident in the pooling system, especially in families with higher income levels or where the man is the sole wage-earner.

37. Ibid, ch 6. See also Pahl, J and Vogler, C ‘Money, power and inequality within marriage’ (1994) 42(2) Sociological Rev 263. Pahl and Vogler found that the orthodox model of households as egalitarian decision-making units only applied to about one-fifth of households in the study. These were predominantly couples who opted for the pooling system. Inequality between men and women over control of and access to the household finances was least in such households and greatest in either low or higher income households where the finances were male-controlled.Google Scholar

38. Ibid, pp 142–146. See also Pahl, J ‘Household Spending, Personal Spending and the Control of Money in Marriage’ (1990) 24(1) J Br Sociological Assoc 119.Google Scholar

39. MidZund Bunk v Dobson [1986] FLR 171.

40. G Moffat Trusts Law (London: Butterworths, 1994) 454, argues that this may amount to asking the courts to reconstruct the terms of the parties' agreement in order to determine whether there is the requisite nexus.

41. Ferguson, P ‘Constructive Trusts - a Note of Caution’ (1993) 109 LQR 114.Google Scholar

42. Moffat above n 40, pp 454–455.

43. Lawson, A ‘The things we do for love: detrimental reliance in the family home’ (1996) 16 LS 218.Google Scholar

44. [1995] 4 All ER 562.Google Scholar

45. [1996] 1 FLR 826.Google Scholar

46. Cf Clough v Killey [1996] 72 P&CR D22, which re-affirms the more conservative approach of Rosset. The court held that, where there is an express common intention as to co-ownership and shares, the court would enforce this and not adopt a broad brush approach in determining the parties' shares.

47. [1991] 1 WLR 1127.Google Scholar

48. For criticisms on Hammond v Mitchell, see a Lawson ‘Acquiring a Beneficial Interest in the Family Home’ [1992] Con v 218; P O Hagan ‘Indirect Contributions to the Purchase of Property’ (1993) 56 MLR 223; and Clarke, L and Edmunds, R ‘H v M: Equity and the Essex Cohabitant’ [1992] Fam Law 523.Google Scholar

49. Per Scarman LJ in Crabb v Arun DC [1976] Ch 179 at 198.

50. Moffat above n 40, p 459.

51. Warburton, J ‘Trusts, common intention, detriment and proprietary estoppel’ (1991) 5 TLI 9.Google Scholar

52. Eves: Grant v Edwards; Midland Bank v Cooke.

53. Eekelaar above n 27 at 99.

54. D Hayton ‘Equitable Rights of Cohabitees’ (1990) Conv 370.

55. Ibid at 378.

56. Cf Ferguson above n 41, which provides a critical analysis of Hay ton's comments. See also Hayton, D ‘Constructive trusts of homes — a Bold Approach’ (1993) 109 LQR 485, providing a reply thereto.Google Scholar

57. Cf Gardner above n 13, who argues that, despite the flexibility of estoppel principles, an estoppel claim cannot arise in the absence of reasonable belief. Thus, in order for the assimilation of constructive trusts and estoppel to found claims based on indirect contributions, it would mean the abandonment of the referability rule which will allow greater invention of facts by the courts.

58. Cf Warburton above n 51, who argues that any attempt to assimilate constructive trusts and proprietary estoppel appears to be an attempt to re-introduce by the backdoor Lord Denning's ‘new model constructive trust’ and will expose claimants and third parties to the same uncertainty which the new model constructive trust was criticised for.

59. Halliwell, M ‘Equity as Injustice: the Cohabitant's Case’ (1991) 20 Anglo-Am LR 500.CrossRefGoogle Scholar

60. See Grensley v Cooke [1980] 1 WLR 1306, where the claimant was able to rely successfully on her domestic services; cf Coombes v Smith [1986] 1 WLR 808 and Rosset where such claims were rejected as being sufficient acts of detrimental reliance.Google Scholar

61. Halliwell above n 59 at 521.

62. Warburton above n 51.

63. Halliwell above n 59 at 520, in fact, argues that disentangling estoppel from common intention would pave the way for increased recognition of non-financial contributions, For an interesting discussion on sexuality and detriment, see L Flynn and A Lawson ‘Gender, Sexuality and the Doctrine of Detrimental Reliance’ [1995] Feminist Legal Studies 105.

64. Above n 13.

65. .(1985) 160 CLR 583.Google Scholar

66. (1987) 164 CLR 137.Google Scholar

67. Neave, M ‘The Unconscionability Principle - Property Disputes between De Facto Partners’ (1991) 5 Aust J Fam Law 185.Google Scholar

68. (1989) 12 Fam LR 725.Google Scholar

69. (1990) DFC #95–095.

70. (1990) 14 Fam LR 97.Google Scholar

71. Cf Miller v Sutherland (1991) 14 Fam LR 416, where no financial contributions were made towards the acquisition of the property but the claimant succeeded on the basis of the substantial renovation work done by her and her family on the defendant's property. There is, however, nothing in the decision to suggest that the unconscionability-based constructive trust will allow purely domestic services to give rise to a similar result. In fact, it is arguable that, although couched in terms of unconscionability, the court's reasoning was not very different from that taken in Eves, where the plaintiff wielded a fourteen pound hammer. The nature of the non-financial contributions were perceived as going beyond typical ‘women's work’ and were capable of economic valuation.Google Scholar

72. Bryan, M ‘Constructive trusts and unconscionability in Australia: on the endless road to unattainable perfection’ (1994) 8(3) TLI 74.Google Scholar

73. Arthur v Public Trustee (1988) 90 FLR 203 and Bryson v Bryant (1992) 29 NSWLR 188 Google Scholar. Refer also to Riley, J ‘The Property Rights of Home-makers under General Law: Bryson v Bryant’ (1994) 16 Sydney LR 412.Google Scholar

74. Cf Green v Green (1989) 17 NSWLR 343, where, despite the claimant's lack of financial contribution, her claim succeeded. The court was prepared to infer a common intention from the casual statements made by the deceased as well as to give detrimental reliance a broad interpretation. Bryan suggests that this case illustrates the fact that ‘common intention’ has still survived the introduction of the unconscionability-based constructive trust (above n 72 at 74).Google Scholar

75. (1980) 117 DLR (3d) 257.Google Scholar

76. (1986) 29 DLR (4th) 1.Google Scholar

77. Dickson J explains (at 274) that the ‘absence of juristic reason’ condition is satisfied ‘where one person in a relationship tantamount to spousal prejudices herself in the reasonable expectation of receiving an interest in the property and the other person in the relationship freely accepts benefits conferred by the first person in circumstances where he knows or ought to have known of that reasonable expectation it would be unjust to allow the recipient of the benefit to retain it’.

78. [1993] 101 DLR (4th) 621.Google Scholar

79. Farquhar, K, ‘Unjust Enrichment, Special Relationship, Domestic Services, Remedial Constructive Trust: Peter v Beblow ’ (1993) 72 Can Bar Rev 538.Google Scholar

80. Gardner above n 13 at 273–274.

81. Scane, R ‘Relationships “Tantamount to spousal”, Unjust enrichment and Constructive trusts’ (1991) 70 Can Bar Rev 260 at 278.Google Scholar

82. (1989) 61 DLR (4th) 14.Google Scholar

83. Birks defines free acceptance as one ‘where a recipient knows that a benefit is being offered to him non-gratuitously and where he, having, the opportunity to reject, elects to accept’ (P Birks Introduction to the Law of Restitution (Oxford: Clarendon Press, 1986) 265). For Birks, free acceptance not only establishes the enrichment but also the unjust factor. This argument has been challenged by both Burrows and Mead: A S Burrows ‘Free Acceptance and the Law of Restitution’ (1988) 104 LQR 576; G Mead ‘Free Acceptance: Some Further Considerations’ (1989) 105 LQR 460. Using Birks' example of the window-cleaner, Burrows, who is supported by Mead, contends that the window-cleaner, in offering his unrequested services, is assuming the role of risk-taker in expecting payment from the recipient. The law of restitution should not be expected to undertake the task of protecting that risk ((1988) 104 LQR 576 at 578). However, Burrows agrees with Birks that there is an unjust enrichment in the situations where services are rendered, albeit unrequested, to the recipient under a mistake.

84. Scane above n 81 at 295.

85. For a detailed discussion of the issue of proprietary link, see Scane above n 81 at 287–304. Cf Gardner's argument that incorporating trust and collaboration within the unjust enrichment analysis will remove problems relating to voluntariness and subjective devaluation by the defendant. It would seem that trust and collaboration raises a similar presumption as that discussed by Scane.

86. Paciocco, D ‘The Remedial Constructive Trust: a Principled Basis for Priority over Creditors’ (1989) 68 Can Bar Rev 315.Google Scholar

87. M Welstead ‘Domestic Contributions and Constructive Trusts: The Canadian Perspective’ (1987) Denning LJ 151.

88. ‘Cases like Pettkus (20 years), Sorochan (42 years), Pirie v Leslie (1988) 29 ETR 246 (Man QB) (nine years) and Boucher v Koch (1988) 14 RFL (3d) 443 (Alta CA) (20 years) all illustrate how the length of the relationship may be an influential factor in determining whether equitable relief is to be granted.Google Scholar

89. [1989] 2 NZLR 327.Google Scholar

90. [1993] 3 NZLR 159, CA.Google Scholar

91. [1995] 1 NZLR 277, CA.Google Scholar

92. [1992] 3 NZLR 612, HC.Google Scholar

93. Above n 81.

94. Daily Mail, 6 November 1996.

95. Above n 59.