Kerr J.

Unmarried couple with family home in joint names. On separation, they agreed respondent would retain house and savings and forsake interest in claimant’s pension and shares (even though unmarried). Thereafter the respondent paid the interest-only mortgage and resolved insurance issues relating to damage to the home. She did not pursue any TOLATA or Sch 1 claim, nor was the house formally transferred to her. When claimant sought half share of equity, respondent asserted constructive trust arising from agreement coupled with detriment. At first instance, HHJ Ralton rejected all detriment asserted by respondent other than that she had not pursued other claims against claimant, but found this was sufficient. He noted that although the parties were unmarried, they had both believed that the family wealth would be shared between them on separation and ‘some sort of civil claim like this one in the form of constructive trust or equity could have been mounted’ even if weak.

On appeal by the claimant: In Jones v Kernott [2011] UKSC 53 the SC set down the principles applicable to cases in which a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests. The SC did not mention detriment and would not have forgotten to do so if they intended it to apply. The issue is ‘always ultimately one of unconscionability, in the broadest sense; [67]. ‘In a case where there is a clear express agreement… it seems otiose to superadd a detriment requirement where the common intention – and unconscionability if the agreement is broken – is already shown by the existence of the agreement; at any rate if the agreement is more than a gratuitous promise; [70]. Thus ‘in the domestic consumer context, an express agreement as to beneficial shares, provided it is not a unilateral oral declaration of trust making the putative beneficiary a mere volunteer, can itself supply the necessary detriment or, as I prefer to put it in the light of the formulation in Jones v. Kernott at [51], satisfy the requirement of unconscionability without the need to establish separately that the beneficiary has acted in detrimental reliance on or changed her position in reliance on the promise’ [79].