Equality in the Family Home? Stack v. Dowden PDF

Fem Leg Stud (2007) 15:341–353 Ó Springer 2007 DOI 10.1007/s10691-007-9065-y Case Note REBECCA PROBERT EQUALITY IN THE FAMILY HOME? Stack v. Do...

Fem Leg Stud (2007) 15:341–353 Ó Springer 2007 DOI 10.1007/s10691-007-9065-y Case Note REBECCA PROBERT EQUALITY IN THE FAMILY HOME? Stack v. Dowden U.K.H.L. 17 ABSTRACT. The recent decision of the House of Lords in Stack v. Dowden appears, at first sight, to endorse a new approach to the jointly owned family home. However, upon closer inspection, this proves to be something of an illusion: the new approach is remarkably similar to the traditional resulting trust in that it attaches more weight to financial payments than to other contributions. A further problem is that the dis- junction between the reasoning of the judges and the actual result makes it a difficult decision to apply to future cases. This case-note will consider the legal and social issues raised by the case and will argue that it has the potential to disadvantage women who do not make an equal financial contribution to the purchase of the home. KEY WORDS: cohabitants, constructive trusts, equity, family home, money-man- agement, property, resulting trusts INTRODUCTION The family home, almost by definition, lies at the intersection of family law and property law. This raises a fundamental issue for policy-makers: should the rules governing the acquisition of an interest in the home derive from family law or property law? Since legislative interventions have been minimal,1 the determination of interests in the family home has been governed by general principles of property law. The past few decades have, however, seen the development of lines of authority that have little application outside the family home (Dewar, 1998), and the relationship of the parties in dispute may affect the way in which a court interprets their actions.2 The central question raised by the recent decision of the House of Lords in Stack v. Dowden3 is: how far is it legitimate for a court to 1 A rare example is s. 37 of the Matrimonial Proceedings and Property Act 1970, which deals with the effect of substantial improvements made by spouses and fiancé(e)s. 2 See, e.g., Midland Bank v. Cooke 4 All E.R. 562. 3 U.K.H.L. 17. 342 REBECCA PROBERT take the status of the parties into account in determining their property rights? THE FACTS OF THE CASE The facts of Stack v. Dowden were relatively simple, although some points were in dispute. Mr. Stack and Ms. Dowden formed a rela- tionship in 1975, when both were in their teens. In 1983 Ms. Dowden purchased a house, and the couple began to live together perma- nently. The house was conveyed into Ms. DowdenÕs sole name: it appears that it was purchased on favourable terms from the estate of a man that Ms. Dowden had known as ‘‘Uncle Sidney’’, who had wanted her to have the chance to buy it. There was a question whether Mr. Stack had contributed anything to the purchase price of this house: it was Ms. Dowden who raised £22,000 by way of mortgage and made repayments, but there was some evidence that Mr. Stack had paid money into her building society account from which the £8,000 deposit was paid. Four children were born to the couple over the next few years. In 1993 the family moved to a new home, which was conveyed into joint names. The land registry form declared that the survivor of the parties could give a good receipt for capital moneys arising from a disposition of all or part of the property, but there was no other indication as to the beneficial ownership of the property. Both Mr. Stack and Ms. Dowden assumed liability for the mortgage, and both made repayments under it. In 2002 the relationship broke down and Mr. Stack claimed an interest in the home. At first instance it was held that equal division was appropriate. An appeal by Ms. Dowden was successful, and the Court of Appeal ordered that she should receive 65% of the proceeds of sale. Mr. Stack then appealed to the House of Lords, which unanimously dismissed his appeal. The reasons given for so doing were, however, significantly different from those relied upon in the Court of Appeal, and the fact that all five members of the House of Lords were agreed on the result masks important differences in their reasoning. THE LEGAL ISSUES The first issue concerned the declaration made by the parties at the time of the purchase in 1993. Did a declaration that the survivor  EQUALITY IN THE FAMILY HOME? 343 could ‘‘give a valid receipt for capital money arising on a disposition of the land’’ amount to an express declaration of a beneficial joint tenancy? It had been decided in the Court of Appeal that it did not,4 and the House of Lords agreed that such a declaration neither could nor should indicate a beneficial joint tenancy: it could not, because it was consistent with other forms of beneficial ownership,5 and it should not, because the parties (perhaps understandably) had little understanding of its implications (see para. 84). With the declaration being disregarded as irrelevant, attention turned to the fact that the legal title to the property was registered in the joint names of the parties. All five judges agreed that the starting point was that equity would follow the law: so a joint tenancy at law would indicate a joint tenancy in equity.6 They differed, however, on how easily this could be displaced. Lord Neuberger took the view that the rule applied only ‘‘[i]n the absence of any relevant evidence’’ (para. 109): if there was evidence of unequal financial contributions, the partiesÕ interests in the property would be commensurate with their respective contributions under a resulting trust; while if there was evidence of a common intention that their interests should be different, on which the claimant had relied to his or her detriment, then the resulting trust ‘‘would become rebutted and replaced, or (conceivably) supplemented, by a constructive trust’’ (para. 124). The majority of the House of Lords took a different view. Both Lord Walker and Baroness Hale (with whom Lord Hoffman agreed), took the view that it would be very difficult to show that the shares of the parties were not equal.7 As Lord Walker put it: 4 See its earlier decisions in Harwood v. Harwood 2 F.L.R. 274 and Hun- tingford v. Hobbs 1 F.L.R. 736. 5 For example, holding the property on trust for third parties: see Baroness Hale at para. 51. 6 See Lord Hope (para. 4); Lord Walker (para. 14); Baroness Hale (para. 56) and Lord Neuberger (para. 109). Lord Hoffman did not give a separate judgment but expressed his agreement with Baroness Hale. 7 While the fifth judge, Lord Hope, expressed his agreement with the reasons of Baroness Hale, there were hints in his judgment that he had some sympathy for the more orthodox approach of Lord Neuberger: he stressed the fact that the contri- butions of the parties were unequal and held that these unequal contributions would be determinative unless there was evidence that the parties intended to share the beneficial interests equally (para. 11). 344 REBECCA PROBERT there will be a heavy burden in establishing... that an intention to keep a sort of balance-sheet of contributions actually existed, or should be inferred, or imputed to the parties. The presumption will be that equity follows the law. (para. 33) Baroness Hale put it even more strongly, suggesting that ‘‘cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual’’ (para. 69, emphasis added). Key to the reasoning of the majority was the view that different rules should apply in the context of the family home.8 Yet, despite the heavy burden on any party seeking to establish that a property held jointly at law is not held jointly in equity, Ms. Dowden retained a 65% interest in the property. What made this an unusual case? The first reason given by Baroness Hale (para. 87) – and the only reason given by Lord Hope (para. 11) – was that Ms. Dowden had con- tributed significantly more to the purchase price. For the former, the clinching factor would appear to have been the way in which they organised their finances: they did not pool their resources and the only assets in joint names were the family home and the associated endowment policy. Whether this was an appropriate inference is considered further below; for now it is sufficient to note that the House of Lords inferred that the intention of the parties was to share the beneficial interest unequally. In deciding what shares each party should have, the House of Lords unanimously confirmed that the question to be posed was: what did the parties intend?9 This question was to be answered – where necessary – by examining a broad range of financial and non- financial contributions.10 Yet at the same time it was recognised that the relationship between intentions and contributions was a complex one: contributions could throw light on the partiesÕ intention; but the meaning of contributions would be influenced by the context of the partiesÕ relationship. As Lord Hope noted, ‘‘[w]ho pays for what in regard to the home has to be seen in the wider context of their overall relationship’’ (para. 3). The point was expanded by Baroness Hale, 8 See Lord Hope (para. 3); Lord Walker (paras. 14 and 33) and Baroness Hale (para. 42); cf. Lord Neuberger (para. 107). 9 See, e.g., Lord Hope (para. 11); Lord Walker (para. 35, in which he agreed with what Baroness Hale said in para. 61); Baroness Hale (para. 69); Lord Neuberger (para. 145). 10 See, e.g., Lord Hope (para. 12); Lord Walker (para. 34); Baroness Hale (para. 61); and – more tentatively – Lord Neuberger (para. 145).  EQUALITY IN THE FAMILY HOME? 345 who set out a comprehensive (but still avowedly non-exhaustive) list of the factors that might be relevant in divining the partiesÕ inten- tions: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the partiesÕ relationship; whether they had children for whom they both had responsi- bility to provide a home; how the purchase was financed, both initially and subse- quently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. (para. 69) Even more personal factors were deemed relevant: The partiesÕ individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary consider- ations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection. (para. 69) This is an ambitious enquiry for any court to undertake. It is often difficult enough to establish who contributed what, let alone the reasons behind the division of responsibilities. It may even have been the case that the parties had different intentions: one may have been motivated by love and affection while the other was motivated by the desire to preserve his or her own interests. Perhaps fortunately, it was envisaged by the majority that in the majority of cases it would not be necessary to embark upon such an investigation, as the presumption would be that the beneficial interest would be owned jointly. There is thus a paradox in the strong warning of Baroness Hale that the court should be seeking to ascertain the intentions of the parties and should not ‘‘abandon that search in favour of the result which the court itself considers fair’’ (para. 61). After all, is not the court imputing an intention to all joint legal owners that they intend to hold the property as beneficial joint tenants? A further problem does, however, present itself: how does the court know whether the case before it is exceptional or not until the enquiry into the partiesÕ contributions, intentions and general relationship had been carried out? In this case, the precise share accorded to each reflected a con- cession made by Ms. Dowden that Mr. Stack should receive at least 346 REBECCA PROBERT 35%: it was therefore unnecessary to reach any decision on the pre- cise contributions made by each, since, according to Baroness Hale, even the most generous interpretation of the evidence showed that Mr. Stack had contributed no more than 36% (para. 88). The result endorsed by the majority coincided with that reached by Lord Neuberger on the rather different basis of a resulting trust based on the partiesÕ respective contributions (para. 147). THE SOCIAL ISSUES A number of questions are raised by the reasoning of the majority: first, should there be such a strong presumption that a joint legal tenancy indicates a joint tenancy in equity; secondly, in what cir- cumstances will that presumption be displaced? This section will focus on the extent to which the decision in Stack can be justified by reference to the empirical evidence. Given the absence of research regarding the way same-sex couples organise their domestic lives – or indeed on the arrangements adopted by blood relatives who share a home that is registered in joint names – it will look only at hetero- sexual cohabitants, although Stack obviously has implications for all joint legal owners in the domestic context. First, it should be noted that although a bare majority of cohabiting couples continue to believe that there is such a thing as Ôcommon-law marriageÕ this belief falters a little when more specific questions as to their legal rights are posed (Barlow et al., 2005, p. 33). It cannot be assumed, therefore, that cohabiting couples think that they own their assets jointly (especially as this is not even true of married couples), or that their assets will be divided equally on relationship breakdown (see further Tennant et al., 2006, p. 93; Arthur et al., 2002, p. 35). Given that research has raised doubts as to whether those who do complete a declaration of trust understand its implications (Douglas et al., 2007), courts should surely be cautious in drawing inferences about the intentions of those who have not (see also Lord Neuberger, para. 113). On the one hand, there is evidence that legal ownership is an important factor in dictating the division of assets on relationship breakdown (Tennant et al., 2006, p. 79; Arthur et al., 2002, p. ii), but on the other hand equal division is not always regarded as fair (Tennant et al., 2006, p. 55), and there is also research suggesting that separating cohabitants attach more weight to financial contributions than domestic contributions in dividing their  EQUALITY IN THE FAMILY HOME? 347 assets (Arthur et al., 2002, p. 58) and that equal division is not automatic even when the home is in joint names (Arthur et al., 2002, p. 109). It is therefore open to question whether imposing joint beneficial ownership would be consonant with the intentions of cohabiting couples. This leads on to the second question: in what circumstances may the presumption of joint beneficial ownership be displaced? One would assume that merely making unequal financial contributions cannot suffice, else the approach would be no different to the orthodox resulting trust, and the majority were clear that they were adopting a different approach in the context of the family home. Would it be legitimate to infer an intention to share the home unequally from the money-management practices adopted by the couple? This may cast light on the way that the parties view their resources and their relationship (see, e.g., Burgoyne et al., 2006, p. 630), but cannot be the sole determining factor. After all, the parties may keep their assets separate but make equal contributions to the day-to-day expenses. In addition, independent money-management is not uncommon among cohabiting couples (see, e.g., Vogler et al., 2006, p. 474), and would hardly mark Stack as an exceptional case. It may be, however, that Stack v. Dowden was regarded as an exceptional case because of the way in which each party assumed responsibility for different financial obligations: Ms. Dowden paid the utilities bills, Mr. Stack paid the mortgage interest and joint endowment policy premiums; each kept separate bank accounts and had their own savings and investments. Both contributed to paying off the mortgage loan, but this was achieved through a series of lump sum payments rather than regular instalments. But, again, why would this justify unequal division in and of itself? Making different but equal contributions would presumably not have this effect. Once again, the only rationale for regarding the fact that they made dif- ferent types of contributions as a reason for departing from equality is that their financial contributions were unequal. The same problem arises if one tries to interpret Stack as a case that was exceptional because Mr. Stack made no regular financial commitment. Baroness Hale strongly hinted that Mr. Stack did not pull his weight in contributing to the family finances: The only regular expenditure to which it is clear that Mr Stack committed himself was the interest and premiums on [the second property]. All other regular commit- ments in both houses were undertaken by Ms Dowden. Had it been clear that he had 348 REBECCA PROBERT undertaken to pay for consumables and child minding, it might have been possible to deduce some sort of commitment that each would do what they could. But Mr StackÕs evidence did not even go as far as that. (para. 91) This is perhaps unduly dismissive of expenditure amounting to £33,747 on the part of Mr. Stack. Had his direct financial contribu- tion matched that of Ms. Dowden, it is difficult to imagine the court attaching much weight to the fact that he did not pay other house- hold bills. On the other hand, if Ms. DowdenÕs payment of other household expenses was deemed relevant, one might also question why it was not taken into account in quantifying the partiesÕ shares. At every turn, in trying to pin down the ÔexceptionalÕ nature of Stack, one is forced to the conclusion that every member of the House of Lords was influenced by the fact that the parties had made unequal financial contributions. This is reinforced by the way in which Mr. StackÕs interest was quantified. It was calculated that Mr. Stack had at most contributed 36% of the purchase price, and that this was reflected in his 35% share. But even if the unequal financial contributions of the parties suggested that the parties intended that the beneficial interest should be split otherwise than equally, does it necessarily follow that they intended that their shares should be based on their direct financial contributions to the purchase price? What of all the other factors that might throw light on the partiesÕ intentions, as set out in paragraph 69 of Baroness HaleÕs judgment? It might be thought that the House of Lords lacked the necessary evidence of such matters. Yet if one looks back to Oxley v. Hiscock,11 one finds again a strong correlation between the partiesÕ financial contributions and their eventual shares in the property. For all the rhetoric in recent cases about examining the whole course of dealing and taking a wide range of contributions into account, it is clear that financial contributions are still accorded more significance than others in quantifying interests in the family home.12 In Stack, this approach led to Ms. Dowden receiving a larger share of the family home. In Oxley v. Hiscock, the reverse happened. Some time ago, I argued that the law of trusts did not necessarily disad- vantage women (Probert, 2001), but this argument was premised on 11 Oxley v Hiscock E.W.C.A. Civ. 546. 12 Although if no financial contributions have been made – for example where one party has established that he or she relied to his or her detriment on a promise of an interest by making improvements to the property – then a more broad-brush ap- proach has been taken: see, e.g., Cox v. Jones E.W.H.C. 1486 (Ch.); Probert (2005).  EQUALITY IN THE FAMILY HOME? 349 the basis that courts would – as promised in Midland Bank v. Cooke13 – take a wide range of financial and non-financial contributions into account in quantifying the interests of the parties. Under such an approach the fact that one partner – usually the woman, given the continued disparity between male and female earnings (Office for National Statistics, 2006; Fawcett Society, 2007) and rates of par- ticipation in the labour market (Moffat, 2007) – made a smaller financial contribution would not matter, as this could be balanced out by that partnerÕs greater domestic contributions. By contrast, a focus on financial contributions alone leads to an imbalance between men and women, as more weight is placed on the types of contri- butions that women are less able to make, and no regard is paid to the contributions that they are more likely to make (see, e.g., Ramos, 2001; Lader et al., 2006; Stewart, 2007). The decision in Stack may have been beneficial to one woman, but its approach will not be beneficial to all. One last possibility for considering Stack as an exceptional case deserves to be considered: namely that Mr. Stack received less because he could have paid more. As Baroness Hale commented, had he assumed liability for other contributions to the household expenses ‘‘it might have been possible to deduce some sort of com- mitment that each would do what they could’’ (para. 91). The con- verse of this, one could infer, would be that if each contributed as much as he or she could, equality would be the appropriate outcome. Such an interpretation would operate to the benefit of a lower- earning female partner who devoted the same proportion of her income to the household expenses as her higher-earning partner. There are, however, two problems with this. The first is practical: it is difficult to imagine that the courts would welcome an approach that required evidence of the relationship between the partiesÕ respective earnings and contributions over the entire course of the relationship. The second problem is that even this more nuanced approach to financial contributions leaves non-financial contributions out of account. We do not know, because we were not told, whether Mr. StackÕs lesser financial contributions were a source of resentment and tension in his relationship with Ms. Dowden or were regarded as an irrelevance because of his other contributions to the home and to the family. The fact that their relationship endured for so long might, however, tell its own story on that point. 13 Midland Bank v. Cooke 4 All E.R. 562. 350 REBECCA PROBERT THE IMPLICATIONS OF THE CASE Stack v. Dowden obviously has important implications for those who are joint legal owners of property, who will need to take steps to clarify their beneficial interests in the property if they do not wish to be joint tenants in equity. Given that the Land Registry transfer forms were amended in 1997 to direct those purchasing a property jointly to complete a declaration as to their beneficial interests in the property (see Wilson, 2006), the case will be of relevance only to those who purchased their property before that date or who have failed to complete the relevant declaration – after all, as Baroness Hale noted, there is no strict legal requirement to do so (para. 52). Since most cohabiting relationships are of fairly short duration (Kiernan, 2004, p. 47), and cohabitants are less likely to own their home as joint legal owners than are married couples,14 the actual decision in Stack will have little impact on the majority of cohabiting couples. Although it attracted attention as the first case involving the property rights of unmarried couples to reach the House of Lords, it is likely to have more significant implications for married couples who need to determine their property rights while their marriage is subsisting or where it is ended by death, given the higher rates of joint legal ownership among married couples. For those long-term couples whose home is in joint names, the impact of Stack is difficult to predict. The argument that a legal joint tenancy of the family home should raise a presumption that the beneficial interest is held as a joint tenancy was undercut by the suggestion that the quantification of the partiesÕ shares should rest on the partiesÕ intentions and that a wide range of factors should be taken into account in ascertaining those intentions. Both possible principles were then directly contradicted by the actual result in Stack. The courtÕs insistence that it should be hard to displace the presumption of a beneficial joint tenancy was undermined by the difficulty in finding any reason – other than unequal financial con- tributions – why Stack was an exceptional case, while the idea that a wide range of contributions should be taken into account in ascer- taining the partiesÕ intentions seems to have had no influence on the shares attributed to the parties, which reflected their direct financial contributions. In the light of the evidence reviewed above, a focus on 14 Only a minority of cohabiting couples live in accommodation that is in joint names: 30%, according to one recent survey (Haskey, 2001, p. 33).  EQUALITY IN THE FAMILY HOME? 351 direct financial contributions – as both the reason for departing from a beneficial joint tenancy and the means of quantifying the partiesÕ shares – would be to the detriment of women. The new approach to the family home has all the disadvantages of the traditional resulting trust, but without its logic and simplicity. A further aspect that needs to be considered is what implications Stack has for those homes that are in sole ownership. In such cases the starting presumption will be that the sole legal owner is also the sole beneficial owner. Were this to be made more difficult to rebut, this would also have implications for female cohabitants, since men are still more likely than women to be the sole legal owners of the family home (Tennant et al., 2006, p. 17). A number of obiter dicta do, however, suggest that a more generous approach should be taken in this context. The value of such obiter statements should not be downplayed, given that Lord BridgeÕs formulation of the relevant principles in Lloyds Bank v. Rosset15 was itself obiter, although they do not sit easily with the actual outcome in Stack. Lord Walker, for example, doubted whether Lord BridgeÕs sug- gestion in Rosset that, in the absence of express discussions, only direct financial contributions to the purchase price would justify the inference of a common intention to share the beneficial interest, was in line with earlier authorities. He opined that ‘‘the law has moved on [since Rosset], and your Lordships should move it a little more in the same direction’’ (para. 27). This can be read as an endorsement of the decision in Le Foe v. Le Foe,16 which allowed a common intention to share the beneficial interest to be inferred from one partyÕs payment of household bills that enabled the other to pay the mortgage. Such an approach would remove the problem that the allocation of responsibility for items of household expenditure may have an unforeseen impact on the partiesÕ shares in the property. It was also suggested that making improvements that added sig- nificant value to the property should be sufficient to generate an interest.17 While any broadening of the range of contributions that may give rise to an interest in the home is to be welcomed, it should be noted that this still does not include the everyday domestic work that has a less obvious impact on the financial value of the property. 15 Lloyds Bank v. Rosset A.C. 107. 16 Le Foe v. Le Foe 2 F.L.R. 970. 17 See, e.g., Lord Hope (para. 12); Lord Walker (para. 36); Baroness Hale (para. 70). 352 REBECCA PROBERT Given that men are more likely to carry out the D.I.Y. tasks that improve the property (Summerfield and Babb, 2003), while women are more likely to undertake the day-to-day domestic work, the impact of this particular suggestion will not operate to the benefit of women. CONCLUSION It remains to be seen whether the lower courts take up the invi- tation in Stack v. Dowden to adopt a different approach to the family home, whether the presumption in favour of a beneficial joint tenancy will be undermined in practice by a broad interpre- tation of the factors listed in paragraph 69 of Baroness HaleÕs judgment, or whether the financial contributions of the parties will dictate their respective shares. The first option may be more certain and reduce litigation but may not resonate with the expectations of cohabiting couples. The third is to be avoided, since it ignores the wide range of contributions that individuals may make to the family home. The middle option is potentially more complex, but is also likely to yield a fairer outcome – and a broad-brush approach may well find that there is a balance between the partiesÕ contri- butions. Automatic joint ownership of the family home might be an impermissible step forward for the courts, but quantifying shares according to the partiesÕ financial contributions would be a regrettable step back. 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