The common intention constructive trust is now well established as the mechanism used by the courts in England to resolve disputes about the beneficial ownership of family property, whether held in the parties’ joint names or in the sole name of one of them. However, it is clear that there are both doctrinal and practical difficulties with the use of the common intention constructive trust in this context, particularly in relation to the manner in which intentions as to the quantification of beneficial shares may be imputed. The circumstances in which such trusts are being deployed are increasing and as their use moves beyond the traditional area of family property or the ‘domestic consumer context’, these flaws will prove increasingly problematic. It is also becoming difficult to predict where the line will be drawn between cases where the courts apply traditional resulting trust principles on the one hand and the common intention constructive trust on the other hand …
Hilary Biehler, ‘The scope of common intention constructive trusts: where to draw the line?’ 2018 Trust Law International 63.