Burns v Burns: The villain of the piece?

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Mee, John
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The argument in this chapter is that, even if many do not like the implications of the decision, it is difficult to argue that Burns v Burns [1984] Ch 317 - which concerned a claim by a cohabitant to share in the beneficial interest of a family home based on work in the home - was wrongly decided on its own terms (although the Court of Appeal did present a rather limited version of the common intention constructive trust analysis in respects unrelated to the actual facts of the case). Unlike the position following Gissing v Gissing in respect of married couples, no legislative reform in respect of cohabitants has followed in the wake of Burns v Burns. It is arguable that Waller LJ was correct to suggest that the problem in cases such as Burns is not ‘one which could readily be dealt with by legislation’. The Law Commission’s proposed legislative model seems very complex and, though perhaps not for this reason, may not be enacted in the near future. This chapter doubts the legitimacy, in democratic terms, of radical judicial reform in this area and has also suggested that the current common intention trust analysis is not a promising avenue for future development on an incremental basis. This may seem a pessimistic outlook, but where is it decreed that every type of dispute that can arise in society can easily be dealt with by legal means? It may be, however, that something will eventually give – if legislative reform does not occur, then some creative or accidental misreading of existing equitable doctrine may supply the opportunity for the courts to widen the circumstances in which they give a remedy in disputes in the cohabitation (or the wider family) context. Stack v Dowden does not represent this sort of turning point, though perhaps the hyperbole surrounding the case may create a suitable climate for a more radical new departure. Such a departure would probably not be defensible in democratic terms – especially if it occurs against the background of a conscious decision by the legislature not to implement legislative reform – but, if the courts were to choose to ignore this obstacle, it is difficult to see who could effectively call them to account. Nonetheless, the clear insistence by Fox and May LJJ that this kind of reform is more appropriately a matter for Parliament establishes Burns v Burns as a landmark to guide future judges, if they are willing to heed it.
Constructive trusts , Cohabitation , Equity , Law reform , Family law
Mee, J. (2011) 'Burns v Burns: The villain of the piece?', in Probert, R., Herring, J. and Gilmore, S. (eds.) Landmark Cases in Family Law. Oxford: Hart Publishing.
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