WHO GETS WHAT? DE FACTO RELATIONSHIPS AND IMPLIED TRUSTS

Lindy Willmott

doi:10.5204/qutlr.v3i3.276

Abstract

For better or worse, the'de facto relationship' has become an institution of our modern society. With it, however, has come a number of legal problems. Where two parties live together, buy joint property and live 'happily' as man and wife, no legal problems are likely to arise. What are the legal consequences, though, where their harmony is shattered and both parties go their separate ways? Put shortly, who gets what? Because of the large number of couples currently living in de facto relationships and the considerable value of assets held by the parties, both individually and jointly, the practical importance of this question is obvious. If the parties were married, the court would be virtually unrestricted in the property orders it could make under the Family Law Act 1975. As yet, there does not exist in Queensland a statutory equivalent to the Family Law Act for those in a de facto relationship. In such cases, the answer to the question4 Who gets what?' is to be found in basic equitable principles which have developed over the years to cater for the changing conditions in our society.

Highlights

If not rebutted by evidence to the contrary, the courts presume that where one party ('the purchaser') provides the purchase price and the property is purchased in the name of another ('the volunteer'), the latter holds the property on trust for the former
If a property is purchased by a purchaser in the name of a volunteer and the evidence indicates a common intention that the parties were to hold the beneficial interest in the property the court will hold that the volunteer takes the property on a resulting trust in favour of the purchaser and the volunteer in equal shares
That there has been greater judicial divergence of opinion regarding the concept of the 'constructive trust' in the area of beneficial entitlement to property

Summary

Introduction

Trustee or provided the means of obtaining it'.1 Osborn proceeds to give examples of different kinds of resulting trusts, the one relevant for present purposes being as follows 'where on a purchase property is conveyed into the name of someone other than the purchaser, there is a resulting trust in favour of the man who advances the purchase money' . The presumption of resulting trust is merely a device used by the courts to ascertain the parties' intentions.

Results

Conclusion