Morality, Amorality and Equity
Peter Sparkes*

Should equity seek to enforce its moral perceptions? Or is an amoral framework
of equitable rules preferable? These questions are presented by the widespread
adoption of extra-marital cohabitation. Answers will be sought by reviewing the
constructive trust jurisdiction.

Sexual propriety and clean hands
It is obvious from its name that equity is closely related to the morallaw.\

Equitable remedies are distinguished from those of the common law by their
underlying ethical quality.2 The question to be considered is whether equitable
supervision should extend in cohabitation cases to a consideration of the moral
fabric of the relationship which gives rise to the application for equitable relief.
For immediate purposes, it will be assumed that cohabitation outside marriage
would be viewed by equity as immoral.3

Though rooted in principles of conscience, equity is far from being simply a
system offairness. The moral code adopted is rigid and uneven. In certain areas,
the morality of the Chancellor was higher than the morality of ordinary traders.
Dicey cites the examples of trusts and agent's duties to his principal,4 and he might
have added the proscription of usury. Equally the ideas entertained in Chancery
were often far below the highest standards of enlightened public opinion.

Professor Wasserstrom5 distinguished morality and sexual morality, and this
distinction does appear particularly apposite in this connection. He cited
homosexuality as, at the time he was writing in 1971, the paradigm of behaviour
that was sexually immoral, but not really contrary to general standards of morality.
He argued that equity is not concerned with immorality in the second sense.

• Solicitor, Lecturer in Law, University of Southampton.

1. A. L. Goodhart, English Law and the Moral Law (1953), p.124.
2. Spry, Equitable Remedies 3rd ed., p.1.
3. Despite the dictum to the contrary in Stephens v. Avery [1988] Ch. 449, 453G.
4. Dicey, Law and Public Opinion in Britain 2nd ed. (1914), p.368.
5. Morality and the Law (1971), p.6. On the relationship of law and morality more generally, see Lord
Hailsham, "The Law, Politics and Morality", [1988] Denning LJ 59.

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Equity has not often been called upon to rule upon sexual morality as such. The
Tudor Court of Star Chamber6 enforced general morality in the so-called
"criminal equity" but, with the abolition of that court and the disrepute attaching
to its jurisdiction, equity was prevented from acquiring a generic jurisdiction in
morality itself. Day-to-day matters of morality were dealt with by the ecclesiastical
courts7 rather than by Chancery. After the abolition of the Star Chamber, the
Court of King's Bench asserted a right of custodianship of the public morals.8
Chancery certainly refused to uphold trusts for immoral purposes,9 but in so doing
it merely reiterated the lead of the common law in contractual matters. "The rule
invalidating illegal trusts is, at bottom not peculiar to equity."lo There were,
however, some exceptional cases in which equity gave relief against an illegal
contract when the common law hesitated. Goff &Jones cite as examples marriage
brokage contracts and agreements between spouses for future separation. I I Lord
Eldon indicated that the clean hands doctrine is not a bar to such relief.]2 In other
areas, in which rules of morality might have been laid down, equity was content to
adopt a neutral stance.

Equity, of course, requires its litigants to approach with clean hands.13 But this
maxim must be applied with caution, for in many areas its application is narrow
and technical. Equity drew back from equating unclean hands and immorality. Its
jurisdiction founded on moral principle is limited to the application of abstract
principles of justice to cases within its specific jurisdictions.

So the application of the unclean hands maxim today is decidedly restrictive.
"By 'improper' is meant legal, and not merely moral, impropriety."'4 Not any
conduct which could be stigmatised as wrong leads to the denial of equitable relief.
Though the wrongdoing that can be called in aid of the maxim has been described
as "depravity",'s which might well comprehend almost any extra-marital sexual
connection, it is in fact only depravity in a limited sense that suffices. As Eyre CB
explained:

"If this can be founded on any principle, it must be, that a man must come

6. Shaw v. D.P.P. (1962) A.C. 220,272-3 (Lord Reid); Knuller v. D.P.P. (1973) A.C. 435, 471 (Lord
Diplock); Holdsworth, History of English Law vol. V, p.213.
7. Before the Bawdy Court ed. Paul Hain (1972), especially the historical introduction.
8. Shaw v. D.P.P. (1962) A.C. 220,231 (Ashworth J. forthe Court of Criminal Appeal), 268 (Viscount
Simonds).
9. Re Pinion (1965) Ch. 85, 105F,per Harman LJ (school for prostitutes); Thrupp v. Collett (1858) 26
Beav. 125 (trust for purchasing discharge of poachers).
10. Z. Chafee, (1949) 47 Mich. Law Rev. 877, 885; see Sykes v. Beadon (1879) II Ch. D. 170, 196.
11. The Law of Restitution 3rd ed. (1986), p.419; St. John v. St. John (1803-5) liVes. 526, especially at
pp.535-6.
12. The Vauxhall Bridge Co. v. The Earl of Spencer (1821) Jac. 64, 67.
13. Hence the possibility that conduct within the relationship may be relevant to claims based in trust
law; conduct is generally irrelevant in the modem family jurisdiction.
14.Meagher Gummow & Lehane, Equity - Doctrines and Remedies 2nd ed., p.76 citing Dering v. Earl of
Winchelsea (1787) I Cox Eq. Cas. 318.
15. Snell, Pn'nciples of Equity 25th ed. by P. V. Baker & PSt. J. Langan, p.33.

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into a Court of Equity with clean hands, but when this is said, it does not
mean a general depravity; it must have an immediate and necessary relation
to the equity sued for; it must be a depravity in a legal as well as in a moral
sense."16

The adoption of the clean hands maxim in all its width leads to manifest
injustice, as is shown by the experience in America in which the English wisdom
was, at least in the past, lost. It is particularly unfortunate that American courts
have applied the maxim in divorce suits, where it is inappropriate.'7 Thus the
maxim has been applied to a state trooper's pre-marital fornication so as to debar
him from a decree of nullity. 18

That the English courts have adopted a narrower line can be illustrated by
reference to Argyll v. Argyll. 19 The Duke of Argyll was about to publish details of
his relationship with his third wife, defending his breach of confidence by arguing
that the former Duchess did not have clean hands by reason of her adultery.
Ungoed- Thomas J refused to apply the unclean hands principle.20 The wife's
adultery undermined the confidential relationship for the future, but not so as to
betray the confidences of the past.

Argyll demonstrates that sexual immorality will not automatically debar the
plaintiff the right to its relief. Only immorality that is directly related to the
equitable cause of action has to be weighed in the balance.

Trusts of quasi-matrimonial homes
Pettitt v. Pettitt21 and Gissing v. Gissing22 established that a claim to an interest in

a matrimonial or quasi-matrimonial home should be a claim to a beneficial interest
under a trust.23 Allowing an action in contract would have removed the
unfortunate proprietary effect against third parties. However, this expansion was
barred by the doctrine derived from Balfour v. Balfour,24 which implied that a
cohabitation agreement was unenforceable because the parties were presumed not

16. Dering v. Earl of Winchelsea (1787) I Cox Eq. Cas. 318, 319-20.
17. Z. Chafee, supra n. 10, 877, 1065 at pp.1083-90.
18. Donovan v. Donovan 263 N.Y.S. 336 (1933).
19. [1967] Ch. 302.
20. At pp.332A-337B.
21. [1970] A.C. 777.
22. [1971] A.C. 886.
23. Gissing v. Gissing [1971J A.C. 886, 896E (Lord Reid), 900B (Viscount Dilhome) and 904H (Lord
Diplock). In Pettitt v. Pettitt [1970] A.C. 777, 795G Lord Reid rejected the possibility of a claim in
unjust enrichment because that would give only a money claim.
24. [1919J 2 K.B. 571. Support for the application forthis principle can be found in the speeches of
Lords Morris of Borth-y-Gest and Hodson in Pettitt v. Pettitt [1970JA.C. 777, at pp.804, 806. See also
Cowcherv. Cowcher [1972J I W.L.R. 425, 436D and Burns v. Burns [1984] Ch. 317, 335D per May LJ.

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to have intended to create legally binding relations.25
The insistence on trust law analysis means that the courts have not considered

the application to cohabitation agreements of the principle prohibiting the
enforcement of a contract founded upon an immoral consideration.26 An
application for equitable relief arising from an immoral relationship might equally
be tainted with illegality. In order to assess the importance of the possible
immorality argument it is proposed to examine the basis of the jurisdiction on
which equity determines the beneficial interests in a quasi-matrimonial home.

It makes little difference whether the legal title is vested in one name or in joint
names.27 A conveyance to joint names raises a presumption that both parties are to
enjoy a beneficial entitlement.28 Whether or not the legal title to the home is vested
in both partners, there are essentially three cases which call for discussion. These
claims, to be examined in turn, are claims founded upon an express written
declaration of trust, upon a financial contribution giving rise to a resulting trust or
upon an implied agreement leading to the imposition of a constructive trust.29

1. Expressly declared trust
A claim for equitable relief arising under an expressly declared trust is not based

upon the nature of the relationship between the legal owner and the beneficiary,
but upon a clear fact that operates on the abstract calculus of equity to create rights
in the property. 30 That fact is a signed declaration of trust complying with section
53 of the Law of Property Act 1925. The written document stands by itself to
establish an equitable interest in the property. The reasons for the execution of the
document do not affect its validity.

In Ayerst v. Jenkins31 it was held that Chancery would not set aside a bond

25. Though this was not seen as a problem in Tannerv. Tanner (l975J I W.L.R. 1346; in Horrocks v.
Forray (1976] I W.L.R. 230, Scarman LJ (at pp.239F-240A) distinguished cases in which the
relationship had ended (where the parties were at arm's length) and those in which it continued. A.A.S.
Zuckerman argues for much reduced role in "Formality and the Family - Reform and Status Quo",
(1980) 96 L.Q.R. 248; see also S. Hedley, (1985) 5 Ox/ordJo.L.S. 391. Intention to contract is not
viewed as a problem in America: Marvin v. Marvin (1976) 134Cal. Reptr 815, per Tobriner J(on appeal
122Cal. App. 3rd 871). The question of the validity of a cohabitation contract was left open in the most
recent English decision: Layton v. Martin (l986J 2 F.L.R. 227.
26. Up/illy. Wright (l911J I K.B. 506. Traces of this attitude can be found as late as 1959 in Diwellv.
Fames (l959J 2 All E.R. 379; S. Parker, Cohabitees 2nd ed., pp.124-5 says that it can be assumed that
these dicta have been overtaken by events.
27. For examples of joint-names cases, see Bemardv.Josephs (l982J Ch. 391 and Walkerv.Hall(1984)
14 Fam. Law 21.
28. The presumption is rebuttable as in Gram v. Edwards [1986JCh. 638 (brother enjoyed no beneficial
interest); contrast Maharaj v. Chand (l986J A.C. 898 (conveyance to one alone).
29. Per Fox LJ in Bums v. Burns (l984J Ch. 317, 326F.
30. A written declaration is conclusive in the absence of fraud or mistake: Leake v. Bruzzi (I 974J I
W.L.R. 1528; Goodman v. Gallant [1986] Fam. 106.
31. (1873) L.R. 16 Eq. 275. See also Howell v. Price (1855) 25 L.T. O.S. 194 (annuity prevailed over
immoral consideration not appearing on the face of the deed); Re Wootton (1904) 21 T.L.R. 89 (deed
founded on past cohabitation not void even though it contemplated future cohabitation); Robinson v.
Gee (1749) I Ves. Sen 251 (Lord Hardwick LC was rightly scandalised by a purported assignment of a
wife, one Mrs Hanks, which was held to be void).

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founded upon an immoral consideration which did not appear on the face of the
bond. An apparently innocuous bond was enforceable even though it was in fact to
provide for the grantor's deceased wife's sister, with whom he was cohabiting
"under the colour of a fictitious marriage". The same principle should apply to a
modern declaration of trust. The simple fact that a trust is declared by reason of a
relationship that could be branded as immoral is no cause for disputing the validity
of the trust.32

2. Resulting trust from contribution
The second case to take is the resulting trust. An implied trust may be resulting

or constructive. A leading equity text says that "some of the recent cases treat the
two kinds of trust as almost synonymous."33 In many cases, it has only been
important to establish that rights arise under a trust that does not require writing.
For our purposes it is important to distinguish these two forms of trust. A resulting
trust34 is taken to arise where the beneficial interest is created through a direct35

financial contribution. There is therefore little scope for a moral examination of
the underlying relationship by the court of equity. 36The main need to examine the
surrounding circumstances will be to see whether a contribution or a loan is
intendedY Further, the nature of the relationship may be relevant on
conventional theory to determine whether the presumption of advancement
applies.38

The bare fact which then founds the equitable jurisdiction is a financial
contribution to the purchase. The nature of the relationship which caused the
contribution to be made is not pertinent to the ascertainment of the consequences
of the contribution. Thus a case such as Williams & Glyn's Bank Ltd. v. Boland39 is
not a husband and wife case as such, but a case between a legal estate owner and a

32. C/. the analogy of trusts for illegitimate children: P.H. Pettit, Equity and the Law of Trusts 6th ed.,
pp.179-81. At one time a gift by deed for future illegitimate children was void: Occ/eston v. Fulla/lYVe
(1874) L.R. 9 Ch. App. 147. Recent decisions are less strict: Re Hyde [1932] I Ch. 95. These cases are
now reversed by statute: Family Law Reform Act 1987,s.19 replacing s.15(7) Family Law Reform Act
1969.
33. Hanbury & Maudsley, Modern Equity 13th ed. (J.E. Martin), p.69; see also p.281. For criticism of
the analytical laxity implied, see Frank Bates, (1976) 92 L.Q.R. 489. The distinction is fully discussed
by M.J. Dixon, "Co-Ownership Trusts in the United Kingdom - The Denning Legacy" (1988]
Denning LJ 27.
34. It is possible that there may be an underlying intention to create a constructive trust, as in Re
Densham [1975] ] W.L.R. 1519 and Passee v. Passee [1988] 1 F.L.R. 263.
35. For a case in which indirect contributions gave rise to a resulting trust, see Howard v.James (1989)
19 Fam. Law 231.
36. Though a fraudulent intention would bar equitable relief: Sekhon v. Alissa (1989] 2 F.L.R. 94,
98A-C.
37. Good examples are Sekhon v. Alissa [1989] 2 F.L.R. 94 and Spence v. Brown (1988) 18Fam. Law
291.
38. Megarry J in Crane v. Davis Times Law Rep. 13 May, 1971decided that the presumption did not
apply between a man and his "mistress"; the point was left open in Cantorv.Fox(1975) 239 E.G. 121:
see J,G, Miller, Family Property & Financial PrlYVision 2nd ed., pp.26-27.
39. [1981] A.C. 487.

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contributor, so that the same principles would apply if the roles were reversed, or if
the parties were unmarried, or if there were some other connection between
them;40 mother and son,41 aunt and niece,42 yuppies sharing, or sleeping together,
or homosexuals. Whatever the relationship should make no odds; it is the pull of
money that counts.

3. Constructive trusts
Pure resulting trusts, as defined above, are uncommon. Much more common

are constructive trusts arising between the parties to an extra-marital
relationship.43 Many cases involve variations after the initial purchase, which must
presumably operate by way of constructive trust. 44The ultimate object of enquiry
is the relevance of moral conduct in the exercise of this equitable jurisdiction. It is
first necessary to consider the circumstances in which the jurisdiction can be
exercised.

The modern tendency is to discount the very wide jurisdiction proposed at
times by Lord Denning MR45 which amounted to an assertion that a constructive
trust could be used as a redistributive remedy. The argument for that wide
jurisdiction, derived from the speech of Lord Diplock in the House of Lords in
Gissing v. Gissing, 46was in truth inconsistent with the actual decision in that case. A
cohabitee does not acquire an interest in his or her partner's house simply because
they live together for a long period of time, or because the claimant looks after the
children of the relationship, or contributes to the general living expenses of the
household.47 No constructive trust is to be implied simply because a woman goes
to live in a man's house, for claiming a share of the property is not the only reason
for cohabitation.

The essential unifying concept of the modern jurisdiction, identified by
Browne-Wilkinson V-C in Grant v. Edwards,48 is that when a property is
purchased there is a common intention that both partners to the relationship
should be entitled to a defined beneficial interest. A constructive trust arises when
the claimant has acted to his or her detriment in reliance upon that common

40. At p.502F, per Lord Wilberforce.
41. Bull v. Bull [1955] 1 Q.B. 234; Sekhon v. Alissa [1989] 2 F.L.R. 94 (mother and daughter).
42. Re Sharpe [1980] 1 W.L.R. 219 (a loan case).
43. The jurisdiction was said to be founded upon commonsense by Lord Upjohn in Pettiu v. Peuitt
[1970] A.C. 777, 816G.
44. See Hussey v. Palmer [1972] 1 W.L.R. 744 (paying for extension same as paying part of price);
Bernardsv.Josephs [1982] Ch. 391, 404E Griffiths LJ; Fox LJ in Burns v. Burns (1984] Ch. 317, 3270.
45. E.g., in Hussey v. Palmer [1972] 1 W.L.R. 1286, 1290A;Eves v. Eves [1975] 1 W.L.R. 1338.
46. [1971] A.C. 886.
47. Burns v. Burns [1984] Ch. 317. A claim to a constructive trust must allege a contribution to the
purchase ofa specific asset: Layron v. Martin [1986] 2 F.L.R. 227.
48. [1986] Ch. 638, 654F-H.

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intention.49 Usually detriment is proved, or at least evidenced, by a financial
contribution. Cases where no financial contribution are made, but where
nevertheless sufficient detriment is shown, are rarer. 50Financial contribution is an
objective fact, in which moral judgment has no part to play.51

The essential element for our purposes, in which moral judgment might be
relevant, is the proof of the common intention, which founds the basis for the
implication of a trust. It is now possible to abstract a number of related situations
in which an event occurs on acquisition of the property which is inherently
capable, if supported by appropriate later conduct, to found a claim for the
imposition of a constructive trust. They are conveniently summarised by Mustill
LJ in Grant v. Edwards:

"For present purposes, the event happening on acquisition may take one
of the following shapes. (a) An express bargain whereby the proprietor
promises the claimant an interest in the property, in return for an explicit
undertaking by the claimant to act in a certain way. (b) An express but
incomplete bargain whereby the proprietor promises the claimant an
interest in the property, on the basis that the claimant will do something in
return. The parties do not themselves make explicit what the claimant is to
do. The court therefore has to complete the bargain for them by means of
implication, when it comes to decide whether the proprietor's promise has
been matched by conduct falling within whatever undertaking the claimant
must be taken to have given sub silentio. (c) An explicit promise by the
proprietor that the claimant will have an interest in the property,
unaccompanied by any express or tacit agreement as to a quid pro quo. (d) A
common intention, not made explicit, to the effect that the claimant will
have an interest in the property, if she subsequently acts in a particular
way."52

It may become apparent to the court of equity asked to enforce the contractual
arrangement that an irregular relationship is implied. A moral examination of the
basis of the relationship is much more likely in cases falling within heads (b) and
(d) of Mustill LJ's analysis than heads (a) and (c). Mustill LJ postulates that the

49. Detriment is necessary to establish a resulting, constructive or implied trust; otherwise an informal
declaration is void under s.53(1 )(b), Law of Property Act 1925: Midland Bank P.L. C. v. Dobson [1986] I
F .L.R. 171. An authority for imposing a constructive trust without detriment is Lord Denning MR's
judgment in Eves v. Eves [1975] I W.LR. 1338; the case is better supported on the grounds adopted by
Browne LJ and Brightman J.
50. Examples are Gram v. Edwards [1986] Ch. 638 and Eves v. Eves [1975] I W.LR. 1338.
51. Financial contributions are also relevant as evidence of the parties intentions if wholly inferred, as
corroboration of a direct intention, and in quantifying the beneficial interest: per Browne-Wilkinson
V-C in Gram v. Edwards [1986] Ch. 638, 654B-C.
52. [1986] Ch. 638, 652A-C (dealing with a case in which the claimant is female). For discussion see
A.J. Oakley, Constructive Trusrs2nd ed., pp.41-3and P.H. Pettit, Equity and the Law ofTrusts6thed.,
chs. 8 and 10.

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parties have not made explicit the precise terms of their arrangement, so that the
common intention has to be implied by equity completing the presumed bargain
between the parties. Effectively the courts are ascertaining the arrangement that
might be anticipated to be reached by a couple in the position of the parties· to the
action. Proof of the relationship is an essential part of the proof of the claim to a
beneficial interest.

The common feature of all Mustill LJ's heads of constructive trust53is that they
are founded upon an agreement, whether express or implied, that a share is to be
created. If equity could form a moral judgment as to a contract, it could also adopt
a moral judgment in applying the constructive trust jurisdiction. Therefore,
constructive trusts arising from house purchases do give scope for moral
examination of the background to the relationship. The extent to which the courts
have adopted a moral tone must now be considered.

The stereotype of marriage
The constructive trust jurisdiction originated with claims under the Married

Women's Property Act 1882, and has been gradually extended to cases involving
unmarried couples. This history explains the tendency, noted by Freeman,54 to
append legal consequences only to relationships that conform to the stereotype of a
conventional marriage. Freeman was discussing the unrivalled influence of Lord
Denning in this area of the new equity. The former Master of the Rolls would
probably have regarded the intervention of equity as acceptable only where the
relationship conformed, except in formality, to marriage. 55 Looser forms of
association outside marriage or sexual variants of it would not have attracted his
intervention. The moral structure of a relationship may be relevant in the eyes of
equity.

Consideration must start with Ulrich v. Ulrich. 56An engaged couple had bought
a house, both contributing, though the conveyance was taken into the man's name
alone. Mter the marriage had occurred, the Court of Appeal were called to
adjudicate upon the ownership of the matrimonial home. It was held that the wife
was entitled to an equal interest on the facts of the case. Lord Denning MR said
that the effect of contributions before a marriage was the same as after a marriage,
provided that the marriage took place.57He asserted that the position would have

53. [1986] Ch. 638, 652A-C.
54. In Jowell & McAuslan (eds.), Lord Denning - The Law and the Judge, p.l52.
55. In Hoholv. Hohol [1981] V.R. 221 there is some evidence that strict principles of property law are
not applicable between cohabitees; see Robert L. Stenger, (I 989) 27 J. Fam Law 373 for a compamtive
survey.
56. [1968] I W.L.R. 180 (C.A.), subsequently disapproved.
57. At p.185G-H.

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been different if the marriage had never taken place.58 However, Lord Denning
was applying the view that matrimonial property formed a family asset, so that
equal ownership could usually be implied. This view was emphatically rejected by
the House of Lords in Pettitt v. Pettitt59 and in Gissing v. Gissing.60 Hence Lord
Denning's dictum that there is a substantial difference between the position if the
parties subsequently married and if they did not has to be treated with great
caution.61 So too must his opinion that a couple who bought a house intending to
marry but who subsequently did not do so should be treated much as two
strangers.62

Ulrich reveals the original opinion of Lord Denning that there was a substantial
difference between the affairs of married and unmarried couples. This view was
quickly and decisively rejected by the House of Lords. Both of the leading House
of Lords decisions, those in Pettitt v. Pettitt63 and in Gissing v. Gissing,64 involved
married couples. In both cases ordinary principles of equity were applied to
married couples. Viscount Dilhome in Gissing deprecated "the error of supposing
that the legal principles applicable to the determination of the interests of spouses
are different from those of general application in determining claims by one person
to a beneficial interest in property in which the legal estate is vested in another. "65

The extension of the constructive trust therefore started with licit relationships.
In relation to matrimonial homes this jurisdiction was supplemented by the
courts' power to redistribute family property according to principles offairness on
divorce.66 In relation to cohabitation outside marriage the equitable jurisdiction,
based upon established property rights, has stood alone and therefore assumed an
enhanced significance.67 A claimant would acquire no particular rights through
cohabitation, but equally he or she would not lose any equitable rights which he or
she had acquired simply because the couple were cohabiting out of marriage. Such

58. The purchase arrangement could be seen as an ante-nuptial settlement within s.17, Matrimonial
Causes Act 1965(now s.24, Matrimonial Causes Act 1973).The case led to specific statutory provision
for the property of engaged couples: Law Reform (Miscellaneous Provisions) Act 1970, s.2; the
legislarion does not confer a general power to adjust the rights of engaged couples: Mossop v. Mossop
[1988] 2 W.L.R. 1255. Query whether engagement is now a general precursor of marriage.
59. [1970) A.C. 777.
60. [1971) A.C. 886.
61. Cowcher v. Cowcher [1972) 1 W.L.R. 425,429G (Bagnall J).
62. I.e., that there would probably be a resulting trust for them according to their contributions. In
Diwell v. Fames [1959]2 All E.R. 379 the majority of a differently constituted Court of Appeal had held
that a man and his "mistress" should be treated as strangers and not as husband and wife. The reason
given was the absence of legal liability to a cohabitee. Again the underlying assumption was that
matrimonial property formed family assets.
63. [1970) A.C. 777.
64. [1971) A.C. 886.
65. [1971] A.C. 886, 899G. See also Lord Diplock at p.905C, who analysed the case in the neutral
]anguageof"trustee" and "cestui que trust"; Bumsv. Bums [1984]Ch. 3]7, 325C(Waller LJ); Granrv.
Edwards [1986] Ch. 638, 651G (Mustill LJ).
66. Matrimonial Causes Act 1973, part II.
67. Where there are children of the relationship, a wide jurisdiction is conferred by s.12, Family Law
Reform Act 1987; this provision operates from April 1, 1989: 1989 S.1. No. 382.

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a cohabitee "should be treated in exactly the same way as any other tenant in
common in relation to the joint property."68 Apart from cases where specific
statutory jurisdictions apply only to married couples, general equitable principles
are to be applied.69

Logically, as ordinary equitable principles are applied by analogy to marital
property disputes, there is no call for restricting the application of those
techniques to particular relationships. However, the modern case-law can be seen
as an extension from marital disputes to quasi-marital disputes. That extension
has been prompted by the tendency to regard marriage as a mere formality,7° so
that those who are effectively married should be treated in the same way as if
married.7! The current state of the authorities reflects the tension between these
two fundamentally irreconcilable approaches.

The starting point for exploration post-Gissing is Cooke v. Head in which Lord
Denning MR expressed his opinion that the same principles should be applied to
"husband and wife, to engaged couples, and to man and mistress, and maybe to
other relationships tOO."72This theme was taken up in Bernard v. Josephs73 where
Griffiths LJ accepted that the same principles should operate whether the couple
were married or unmarried, but added an important rider. In extra-marital cases
the nature of the relationship is a very important factor in determining what
inferences should be drawn from the way that the parties have conducted their
affairs.74Griffiths LJ suggested that the commitment to the relationship is crucial.
If a couple act as married, though not bothering to go through the ceremony of
marriage, then the courts will treat them as de facto married. If however they
choose not to marry, to retain independence, then according to Griffiths LJ
different conclusions have to be drawn from their conduct. "One cannot make the
blithe assumption that all couples living together are no different from a married
couple. "75

68. Dennis v. MacDonald [1981] I W.L.R. 810, 814B per Purchas J; for a recent reaffirmation of this
principle see, per Mustill LJ, Grant v. Edwards [1986] Ch. 638, 651F.
69. The rules about housekeeping allowances in Married Women's Property Act 1964,s.1 cannot apply
between an unmarried couple: Bromley's Family Law 7th ed. (P.V. Bromley and N. V. Lowe), p.525.
S.37, Matrimonial Proceedings and Property Act 1970relating to improvements is also not applicable
to cohabitees unless engaged, but the position is clouded by the fact that the section is stated to be
declaratory of the existing law: J,G. Miller, Financial Property and Financial Provision 2nd ed., p.4l.
70. See Sir George Baker P (strongly disapproving!) in Campbellv. Campbell [1976] Fam. 347, 352E.
71. The development of the jurisdiction over extra-marital property is naturally well-travelled
territory. Particularly helpful are the discussions by M.D.A. Freeman & CM. Lyon, Cohabilation
without Marriage (1983), pp.88-102, S.M. Cretney Principles of Family Law 4th ed., pp.660-68, and
Robert L. Stenger, "Cohabitants and Constructive Trusts - Comparative Approaches", (I989) 27J.
Fam. Law 373.
72. [1972] I W.L.R. 518, 520G. Karminski LJ at p.522 is to like effect. On quantification of the
interest, Lord Denning also equated a married and an unmarried woman (refetred to as "a mistress") at
p.52IH.
73. [1982] Ch. 391.
74. [1982] Ch. 391, 402E-F; also Kerr LJ at p.408D.
75. At p.403B-C

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MORALITI', AMORALITI' AND EQUITY

The case reflects a most marked and sharp divide in moral perspective. Lord
Denning referred to the woman as a mistress and grudgingly extended protection
to a woman within an illicit relationship.76 He said that the courts should extend
the principles applied to married couples to "couples living together (as if
married)."77 It is by no means clear that this extends beyond a marriage
conforming to a stereotype of marriage. Griffiths LJ's approach enabled couples
to be free to cohabit without commitment without attracting the moral stigma of
the court.78 It is submitted that Griffiths LJ's approach reflects better modern
society.

The modern understanding is best summarised in this passage from the opinion
of Fox LJ in Gordon v. Douce:

"The court may in drawing inferences as to the intentions of the parties, be
influenced by the relationship. What might be sensible between husband
and wife might not be so between two brothers, but in general the principles
applicable must be the same whatever the relationship."79

In this and other cases in which the issue has arisen for decision the couple were
cohabiting as if married. It remains to be seen whether doctrinal orthodoxy will be
upheld in less obvious cases. If a couple drift into a relationship, it is unlikely that
they will define the basis of their relationship with precision.80 Often it will be
"undetermined and indeterminable".81 The courts will usually have to construct
an implied agreement from evidence as to the course of the relationship. The
quality of the relationship is relevant when drawing inferences from conduct. As
the nature of the relationship is an inherent part of the proof of the cause of action,
there is the future possibility, in a different social climate, that the courts might
express a judgment as to the desirability of the form of relationship that exists
between the litigants.

76. Observing that the institution of marriage was being eroded: [1982] Ch. 391, 396G. As Jonathan
Montgomery noted in "Back to the Future - Quantifying the Cohabitee's Share", (1988) 14Fam. Law
72,73, Lord Denning's view of justice was predicated on an assumption of women's dependency; cf.
Wachtel v. Wachtel [1973] Fam. 72.
77. The difficulty is that many couples are unmarried by choice or through a rejection of the institution
of marriage: Brenda M. Hoggett and David S. Pearl, The Family, Law and Society - Cases and Materials
2nd ed., p.284. Surely such considerations should make no difference to trust law principles?
78. See also May LJ in Burns v. Burns [1984] Ch. 317, 333B-C.
79. [1983] I W.L.R. 563, 565H-566A. The apparent divergence between married couples and
unmarried couples as to the date of assessing the beneficial interest has been removed by the decision in
Turton v. Turton [1988] Ch. 542; Kerr LJ said at p.554F that Hall v. Hall (1982) 3 F.L.R. 739 (which
appeared to justify a divergence) was "pervaded by what is now recognised to be an untenable approach
of differentiating between married and unmarried couples otherwise than on the basis of statutory
provision. "
80. Charles Harpum, Adjusting Property Rights Between Unmam'ed Cohabitees, (1982) 2 Oxford.Jo.L. S.
277, 277.
81. Per Lord Denning MR in Bernard v. Josephs [1982] Ch. 391, 400B, speaking of whether a couple
were "engaged" within the Law Reform (Miscellaneous Provisions) Act 1970, s.2; see now Mossop v.
Mossop [1988] 2 W.L.R. 1255.

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THE DENNING LAW JOURNAL

This exploration has shown that the courts have come to accept the logic of Lord
Diplock's analysis in Gissing v. Gissing82 that the constructive trust jurisdiction is
to be applied without recourse to moral judgment. This has great significance for
variant relationships, for exam}'le those between homosexual partners.

Variant relationships
Where the relationship conforms to marriage in all but formality, it is clear that

the constructive trust jurisdiction may be invoked. There is scope for a divergence
of opinion, and so of result, where the parties have some other relationship. The
court has to deduce from the nature of the relationship the appropriate inferences
as to the intentions of the parties. Normal expectations as to property ownership
have to be deduced within a particular kind of relationship. Subtle variations of
circumstances - whether the couple intend in the future to marry when free or they
simply begin to live together without a thought to the future - may then lead to
variant results.83 The nature of the relationship is inevitably brought into the
forum of public debate.

The tools of legal analysis used to regulate extra-marital cohabitation - implied
contracts, constructive trusts and the like - could be used for other variant forms of
relationship looser in their commitment or variant in their sexual orientation.84
They are amoral in character, so that they could be applied to a relationship
whether the court approved of or disapproved of or was neutral in relation to it. As
Carol Bruch has noted of the American experience:

"[T]here is little in the legal or economic rationales ... that restricts their
use to the monogamous heterosexual unit. It is true that in the context of
homosexual or group living arrangements implied agreements may be
somewhat less susceptible of proof, and in many states public policy may
remain a defense to enforcement of established agreements. Beyond such
qualifications, however, the arguments that follow apply."85

Ms Bruch recognises the possibility of immorality arguments being raised. The
court might stigmatise other, more outre, relationships as immoral and so refuse to
sanction the enforcement of property rights arising from it. The current moral
dislocation presents the difficulty of making ethical judgments if no moral
consensus is to be found in society. It cannot however be assumed that the
tolerance implicit in cases such as Stephens v. Avery86 will hold good in the future.

82. [1971) A.C. 886, 905D-906B.
83. E.g., whether the couple are divorcing previous spouses as in Bernard v. Josephs [1982] Ch. 391 or
where there are no marriage prospects as in Tanner v. Tanner [1975] 1 W.L.R. 1346.
84. Ruth L. Deech, (1980) 29 I.C.L. Q. 480,485.
85. (1976) 10 Fam.L.Q. 101,106.
86. [1988] Ch. 449 (lesbianism); contrast Glyn v. Weslon Feature Film Co. [1916] 1 Ch. 261 (adultery).

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MORALITY, AMORALITY AND EQUITY

In these circumstances it does seem quite possible that public policy issues might
be pleaded and taken into account by the courts. There is no English authority in
which a dispute between homosexuals has had to be adjudicated.87

Chancery has available the intellectual apparatus, in the shape of the 'clean
hands' doctrine, to withhold its sanction from applicants of whom it does not
approve. It might well form a judgment, say, that homosexual unions were
contrary to public policy and so that applicants who came to court to allege such a
relationship should be denied access to equitable remedies.

It is suggested, however, that equity should not introduce an element of moral
guardianship into the constructive trust jurisdiction. The doctrine should be
based upon abstract principles of equity,88so that an amoral approach to property
disputes is adopted. It is possible to apply the terminology of trust - putative
trustee and putative cestui que trust - impartially. Happily equity is based upon
abstract moral perceptions, and not upon merit, and those equitable considerations
can be applied impartially to litigants irrespective of their race, their beliefs, or
their sexual propensities.

Conclusion
The constructive trust jurisdiction has grown organically from marital to extra-

marital relationships. Hence there was a tendency to support only relationships
that conformed, except in formality, to the pattern of monogamous marriage.
However, the tools of equitable analysis are of themselves amoral in character. The
logic of the leading statement in Gissing v. Gissing was that the equitable
jurisdiction should be founded on abstract conceptions of justice, rather than a
narrow vision of sexual morality. This logic appears now to be accepted in the
Court of Appeal.

However, the courts retain a residual jurisdiction to deny the use of legal
sanctions to enforce a trust that is contra bonos mores. The Chancery Division has
recently refused to rule on matters of sexual morality in an action for breach of
confidence.89 The unhappy possibility remains that, if the moral tide changes,
public policy arguments may be available in future cases concerning quasi-
matrimonial homes.

87. See a dictum by Glass JA in Allen v. Snyder [1977] 2 N.S.W.L.R. 685, 689C supporting the
application of the same principles to any heterosexual or homosexual relationship.
88. But cj. the parallel presumption of advancement: Snell, Principles of Equity 28th ed. (1982), p.183
approved by Sir F. Lawton in Mossop v. Mossop [1988] 2 W.L.R. 1255, 1260H.
89. Stephens v. Avery [1988] Ch. 449.

103