Facts
Barry Stack and Dehra Dowden lived together for about 27 years and had four children, but never married. In 1993, they bought a house in London in their joint names. Ms Dowden paid much more towards the purchase than Mr Stack, from her savings and her share of the mortgage. The transfer contained no declaration of how the beneficial interest was to be held.
Throughout their relationship, the couple kept their finances strictly separate. They had separate bank accounts and savings, and they paid separately for their own and household items. When they separated, Mr Stack claimed half of the house. Ms Dowden argued that her share should be larger.
Issue
Where a family home is held in joint names, with no express declaration of trust, how should the court decide the parties' beneficial shares?
Decision
The House of Lords held that the beneficial interest was split 65:35 in Ms Dowden's favour. Baroness Hale gave the leading speech. Lord Neuberger agreed with the result, but on different reasoning.
Reasoning
Equity follows the law. Where a domestic property is conveyed into joint names and there's no declaration of trust, the starting point is that the parties are joint owners in equity as well as at law. Someone who claims that the beneficial interest is different from the legal title has the burden of proving it.
Common intention. The question is what the parties intended, which the court deduces objectively from their conduct and the whole course of dealing between them in relation to the property. Baroness Hale listed many relevant factors, including:
- any advice or discussions when the property was bought;
- the purpose of the purchase and the nature of the relationship;
- how the purchase was financed, and how the parties arranged their finances and paid household outgoings.
Financial contributions are relevant, but they're not the only factor.
Unusual facts. Cases where joint owners have unequal shares will be very unusual. Stack was one, because the couple had always kept their finances rigidly separate, and Ms Dowden had contributed much more. That showed that they didn't intend to share the property equally.
Why it matters
Stack v Dowden set the modern framework for deciding shares in jointly owned homes, especially for cohabitants, who don't have the court's wide discretion on divorce.
In Jones v Kernott [2011] UKSC 53, the Supreme Court:
- confirmed the joint names starting point;
- held that the common intention can be inferred from conduct; and
- held that where it's impossible to infer an intention about the size of shares, the court can impute one, giving each party the share it considers fair having regard to their whole course of dealing.
An express declaration of trust is conclusive, in the absence of fraud or mistake (Goodman v Gallant [1986] Fam 106; Pankhania v Chandegra [2012] EWCA Civ 1438). That's why conveyancers always ask joint buyers how they want to hold the beneficial interest.
How it comes up in exams
Co-ownership questions about a family home usually need you to:
- Check the legal title: joint names or sole name?
- Look for an express declaration of trust. If there is one, it's conclusive.
- Joint names, no declaration: start from joint beneficial ownership (Stack). Has the party claiming more rebutted it?
- Sole name: has the non-owner shown a common intention constructive trust (Rosset; Abbott), and what share is fair (Jones v Kernott)?
- Has a beneficial joint tenancy been severed (s 36(2) of the Law of Property Act 1925)? Can either party apply for an order for sale under ss 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996?
Frequently asked questions
What was decided in Stack v Dowden?
The House of Lords held that, although the house was in joint names, the couple's common intention was that Ms Dowden had a 65% share and Mr Stack 35%, reflecting their contributions and the fact that they had always kept their finances separate.
What is the starting point for jointly owned homes?
Where a domestic property is in joint names and there's no express declaration of the beneficial interests, the starting point is that the parties own it jointly in equity, in equal shares if severed.
How did Jones v Kernott develop Stack v Dowden?
In Jones v Kernott [2011] UKSC 53, the Supreme Court confirmed the joint names starting point and held that, where the parties' intention about shares can't be inferred, the court can impute an intention to give each a share that is fair having regard to their whole course of dealing.
What if the house is in one person's name only?
The non-owner must first show that they have any beneficial interest at all, under a common intention constructive trust (Lloyds Bank plc v Rosset [1991] 1 AC 107; Abbott v Abbott [2007] UKPC 53). The size of their share is then decided by looking at the whole course of dealing.