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“Equity is not past the age of child bearing” (per Lord Denning MR, Eves v Eves [1975] 1WLR 1338, CA). Equity is the body of law which was developed by the judges in the Chancery courts to alleviate the rigidity of the Common law.1 The debate surrounding the relevance equity continues to play today has become increasingly prevalent since Lord Denning’s creative attempt to establish a new model constructive trust in Eves v Eves.2 To say that equity ‘is not past the age of child bearing’ suggests that equity is still capable of developing further to provide solutions to contemporary problems in the law which the unyielding nature of the Common law is unable to solve.3 In order to assess the extent to which equity remains capable of developing, it is necessary to briefly examine the purpose of equity’s historical development. Examination of equity’s intervention in the context of trusts of the family home will show that equity is still a useful mechanism which can be used to relieve the harshness of the Common law. Nevertheless, consideration of the judiciary’s approach towards the adoption of a new model constructive trust will show that while equity is still capable of developing to assist the common law, its development is somewhat limited by the reluctance of the judiciary to cause uncertainty in the law. The development of equity as a doctrine to mitigate the harshness of the common law indicates that ‘equity is not past the age of childbearing’ and will develop accordingly where the common law is unable to provide a just outcome. Procedural fusion between the common law and equitable court systems into one unified court places equity on an equal footing in the law, alongside common law.4 As there has been no repeal of this statute, it is indicated that the will of Parliament is to maintain equity as a mechanism for the judiciary to apply where the common law would not provide justice. This is supported by Lord Chancellor Ellesmere who stated that ‘equity’s function was to ‘soften and mollify the extremity of the law’ and thereby, establishing the precedent that wherever a conflict arises between common law and equity, equity will prevail.5 This highlights the importance of retaining equity as an imaginative doctrine which can creatively develop the law, where the rigidity of the common law is unable to develop accordingly.6 Although the proposal for a ‘deserted wife’s equity’ was rejected by the House of Lords, (HOL) the creative nature of equity is a useful tool which can be used to develop the law.7 Under the deserted wife’s equity proposed by Lord Denning, a woman deserted by her husband would have an equitable right to remain in the matrimonial home which would be enforceable against third parties. While the HOL rejected the claim that Mrs Ainsworth had a proprietary interest in the property which, coupled with her actual occupation, could amount to an overriding interest on the third party bank,8 the equitable principle was subsequently enacted on a statutory basis.9 This shows that the existence of equity aids the 1 Worthington, Equity (2edn, OUP 2006) 3-21. 2 [1975] 1 WLR 1338 (CA). 3 Graham Virgo, The Principles of Equity & Trusts (3edn, OUP 2018) 8. 4 Judicature Act 1875. 5 Earl of Oxford’s Case (1615) 1 Rep Ch 1. 6 Virgo (n 3) 34. 7 National Provincial Bank v Ainsworth [1965] AC 1175. 8 ibid. 9 Family Law Act 1996, s 30.

development of the law in adopting to the changing societal and economical needs which the rigidity of Common law is unable to provide due to the principle of judicial precedent. This is in support of the purpose of equity, as highlighted by Lord Evershed, ‘to fulfil the common law; not so much to correct it as to perfect it’.10 Thereby, this indicates that although the development of equity has been somewhat limited by judicial reluctance, it is still very much relevant today in helping to highlight deficiencies in the Common law and providing a workable solution as to how the issue can be resolved. While the courts rejection of a new model constructive trust would seem to suggest that equity is ‘past the age of child bearing’, examination of case law will demonstrate that it is the judiciary’s adherence to the orthodox approach which prevents equity developing further, rather than equity as a doctrine being incapable of doing so. For instance, in a case where the claimant had been misled by her partner that the reason for not registering the title of their family home in their joint names was due to her age, Lord Denning held that she was entitled to a quarter beneficial interest in the property, despite making no direct contribution to the purchase price of the house.11 This was based on a new model constructive trust which he suggested should be imposed ‘whenever justice and good conscience’ required it.12 To some extent this emergence of the equitable doctrine can be seen to be a result of Lord Denning’s creative construction to favour justice whilst opposing form. This can be seen in the obiter of Lord Bridge in a later case which rejected the new model constructive trust,13 stating that the claimant in Eves could achieve justice through interpretation as an express common intention trust and so, use of a new model constructive trust would create unnecessary complexity in the law. Therefore, judges seem unwilling to further enhance the development of equity due to the fear of inducing uncertainty in the law. In this way, the potential for equity to develop further in modern law is limited by the judiciary. Therefore, it is suggested that when necessary developments are required, equity will be a useful mechanism which can alleviate the rigidity of the common law. However, this is unlikely to occur without Parliamentary approval due to the reluctance of the judiciary to act creatively.14 Examination of the development of equity has shown that it has played an integral role in developing the law of trusts in order to ensure justice is provided against the harshness of the common law. For instance, the creative nature of equity has spurred further development in the law with statutory implementation and so, ‘cannot be underestimated’.15 Nevertheless, examination of current judicial attitudes to the adoption of the new model constructive trust has shown that the courts are reluctant to develop equity further for fear of creating uncertainty in the law. Thereby, as Megaw LJ states, ‘the creation of new rights and remedies is a matter for Parliament’ and so, it is unlikely that new equitable doctrines will develop unless Parliamentary support is shown to ensure that the judiciary are adhering to the will of parliament.16 10 Evershed, ‘Reflections on the Fusion of Law and Equity After 75 Years’ (1954). 70 LQ REV 326, 328. 11 Eves v Eves [1975] 1 WLR 1338 (CA). 12 Hussey v Palmer [1972] 3 All ER 744 (CA) 747. 13 Lloyd Bank v Rosset [1989] Ch 350 (HL). 14 Mark Pawlowski, ‘Is Equity Past the Age of Childbearing?’ (2016) 22 Trust & Trustees OUP 892. 15 Pawlowski (n 12) 892. 16 Western Fish Products v Penwith District Council [1981] 2 All ER 204 (CA)....