While legislation endeavours to regulate and define interests in land and their acquisition with care, there has long been instance that unqualified conformity with strict needs can generate discrimination. Hence, for instance, under s.53 (2) of the Law of Property Act 1925 the prerequisite of a signed written document in case of creation and disposal of interests in land does not have an effect on the operation and creation of implied, resulting or constructive trusts. However, there has been an anxiety whether the constructive trust is the outcome of actual intentions of the parties or whether it takes place from the obligation of an equitable remedy by the court. The case of Williams & Glynâs Bank Ltd v Boland illustrates the impact upon third parties where the claimant the wife successfully argued that the bank was bound by her interest under the renowned Section 70 (1) (g) of the Law of Property Act 1925.
Under Matrimonial Causes Act 1973, (as amended), Section 25 the court has broad discretion and a wide range of powers as to their implementation at the time of dealing with the interest in relation to the occupation of the family home of spouses upon divorce though the court cannot apply its power in case of non-spouses nor can it be applied to regulate the interest of third party or occupier. According to Gissing v Gissing  there must be a common intention or agreement between the couple in order to share the beneficial interest and non-owner acted to their detriment in relying on such intention to create a constructive trust. The only aspect of consensus amongst academics, judges and law-reformers alike is that in its current form, the common intention constructive trust remains far from satisfactory.
However, Edmund Davies LJ has clearly identified the weakness of it. It was held by him that:
“English law provides no clear and all-embracing definition of a constructive trust. Its boundaries have been left perhaps deliberately vague, so as not to restrict the court by technicalities in deciding what the justice of a particular case may demand.”
However, it must not be believed that an aspiration to achieve justice to an occupier of a family home will essentially in each case create havoc upon third partiesâ€™ rights. The court will examine the conduct of the parties in an attempt to determine whether intention to share can be inferred, most usually this is in the form of a direct financial contribution to the purchase of the property. It was held that in the absence of any evidence of prior agreement or understanding that the beneficial ownership would be shared, there must be direct financial contribution to purchase; lesser contributions or other acts will not be sufficient. In Burns v Burns the couple had been together for the best part of 20 years, the wife contributing child rearing and domestic labour among other things. However, this was insufficient to establish a constructive trust and the wife got nothing as she had not made a direct financial contribution to the purchase of the house. Her claim was refused because “mere” domestic duties would not be adequate to acquire an interest in that family home.
Following the case of Stack v Dowden  and Jones v Kernott , English and Welsh cohabitants, and courts, continue to struggle with claims offered by common intention constructive trust
The dilemma of the totemic Mrs Burns seems would be the same today as it was 29 years ago. Some attempts with limited success have been made to lessen the boundaries of Burns. However no direct challenge has been made yet with complete success though litigants are confident about changes.
There have been calls for statutory reform ever since Mrs Burns’ case came to the light in 1983. Due to the absence of political consensus, it never happened. However, the judges acknowledged that the existing rule discriminates unjustly against mothers and homemakers and requires drastic modification though it must come via Parliament.
In Australia, Canada and New Zealand, there has been a willingness and judicial freedom so that the law can be applied in an approach that injustices in our own principles can be remedied.
In Lloyds Bank v Rossett and Another , the wife argued that there was an agreement that the acquisition of the house was to be a joint venture. She had made no financial contribution to the purchase price but had carried out some decoration and renovation work. Held that in the absence of evidence of an agreement that the claimant and her husband were to share the property in equity, a trust could only arise if she had made a financial contribution to the purchase price or mortgage repayments.
Lord Bridge of Harwich made abundantly clear that the requisite for a ‘direct financial contribution’ to validate the obligation of a constructive trust in situations where an express conformity to share the asset could not be established.
Burns was followed in this case and especially the remarks expressed by Fox LJ were of essence. According to him to acquire the house there should be evidence of a payment or payments by the plaintiff. It could include contribution by the woman to the family expenses or her indirect contribution to the mortgage. It was stressed by Fox LJ that the factual position was that Mrs. Burns had not made a substantial contribution.
Even though incapable to provide a constitutional modification, the Law Commission suggested that the courts should adopt a wider view to consider the ‘contributions’ in relation to common intention. Certainly Woolwich Plc v Le Foe and Le Foe  has already received judicial approval albeit not at Court of Appeal level. However the contribution made by Mrs Burns’ was largely non-financial. There remains sparkles of optimism for any modern-day Mrs Burns eager for court led modification. We are fortunate that there has been a sound climb in the position of unmarried cohabitants, distinguishable through the modification of s 1 (1) of the Inheritance (Provision for Family & Dependents) Act 1975, held in 1995 with the assistance of cases like Fitzpatrick v Stirling Housing Association Ltd  and into the Adoption and Children Act 2002. Moreover, in Lambert v Lambert , a recent Australian authority, the Court of Appeal’s confidence (in part) assisted to give reason for a different approach from its previous conclusion in Cowan v Cowan . Might this signify a motivation to implement above mentioned approach in relation to cohabitants?
Thorpe LJ regarded (Spoke recently on cohabitants to a meeting arranged by the Society of Labour Lawyers) the conclusion in Burns as an ‘injustice’ and remarkably quoted the below Lord Denning MRâ€™s dictum as ‘surprisingly modern'(Hall v Hall (1982)):
‘It depends on the circumstances and how much she has contributed not merely in money but also in keeping up the house and, if there are children, in looking after them.’
Lord Denning developed this approach to make sure that non-financial contribution made to the home was acknowledged so that the matrimonial constructive trust could be created. However this approach was rejected by the House of Lords as encroaching on property and in rem rights though allowed a creation of trust as long as there were substantial contributions made to the matrimonial home, e.g. home improvement, and mortgage payments.
The essential resolution would be to rip up Burns, consider Rossett as being of historical significance only, and bring in a wider test for the commencement of a constructive trust. Contribution to the household, detriment suffered by the claimant and the child welfare can be taken into account to reach a conclusion. Emergence of proprietary estoppel might cause less dramatic judicial reform as it offers a remedy of increasing flexibility. Commonwealth jurisdictions adopted different equity-based routes to solve this issue. For example Australia relied on ‘unconscionable conduct’, Canada notions of ‘unjust enrichment’ and New Zealand demonstrated the concept of ‘legitimate expectation’. The core idea was to offer equitable fairness rather than application of excessively doctrinal requirements.
Application of proprietary estoppel is not a new idea in this field. In Coombes v Smith , the claimant’s failure was entrenched in the court’s willpower for application of the comprehensive requirement in relation to estoppels required by Fry J in Willmott v Barber (1880). These might create obstacles for future cases though the question is whether detailed criteria of the nineteenth century case are necessary though there have been resisted attempts by Goff J in Amalgamated Investment & Property Co Ltd (In Liquidation) v Texas Commerce International Bank , Oliver J in Willmott v Barber to give up inflexible criterion restraining equitable relief though these applied to commercial situations but still the language mirrors the language of the judges of commonwealth to deal with de facto interactions.
Of late in a commercial context of Gillett v Holt and Another  the Court of Appeal favoured a sizeable lump sum award to mirror promises of inheritance offered to an applicant which were done over the period of thirty years relationship.
There is an approval that these equitable remedies must stay flexible and that the courts must protect against anyone seeking to entail doctrinal analysis upon them. Gillett also allows lump-sum relief to reveal interests in chattels excluding the claimant’s house. It recognises that the detriment by a claimant must be judged at the time of relationship breakdown and not the time when the original promise was made. The very basic requirements of proprietary estoppel e.g. assurance, reliance must be satisfied.
Very recently, in Lissimore v Downing , the judge dismissed Miss Lissimoreâ€™s claim on the ground that the supposed assurances could not hold up an estoppel claim because they did not communicate to specific property. However does this conclusion not put too heavy a load on such cases? Lissimore reminds us the vulnerability that lies in future for litigants pursuing remedies via proprietary estoppel. Though Miss Lissimorre was not a Mrs Burns due to the nonappearance of property and children together developed at the time of relationship. It will certainly be strange if partners form a home mutually, get going and then raise a family and reside together for long years without there being reasonably definite assurances being done as to the their future pecuniary protection?
Property-based family law is in the verge of modification. Of late, in Re P (A Child) , the Court of Appeal approaching has indicated an eagerness to relax the boundaries of assistance in MCA 1973, Schedule 1 cases in relation to unmarried mothers though the centre grievance of Mrs Burns’ case continues. Each year that passes without development in this vicinity certainly witnesses enormous cases of unfairness with no remedy. The holy grail of constitutional modification has demonstrated indefinable. Undeniably the New Zealand practice proposes that continues development through judicial decision facilitates the reform for cohabitants. To lessen the unfairness in the present law, proprietary estoppel might work as a vehicle. The door is partly opened after Gillett though opening it further may not be easy according to Lissimore but cases like Jennings v Rice  and Chan Pui Chun v Leug Kam Ho  had supplemented to the force began by Gillett instead of slowing it down. Unquestionably additional transformation is not far away and an altered conclusion of Burns will be seen if it were to be decided today.