Chapter 3- Cohabitants Flashcards
If cohabitants wish to outline their financial and property rights in the relationship, what is this called?
Cohabitation contract
Which case illustrates as failed cohabitation contract? Why?
Sutton v Mishcon De Reya
Claimant tried to sue their solicitors as the cohabitation contract failed, but the contract did not state the financial position of the parties was subject to them living together.
Why are contracts usually unsuccessful in family law?
As there is usually no intention to create legal relations within family. Unless each party seeks independent legal advice.
What will prevent a family contract being entered?
If it is entered into with undue influence, duress or misrepresentation
How can it be determined if a cohabitant has a share in the property?
1) is it in writing?
2) if not in writing apply stack v dowden
3) is there an implied trust? Resulting or constructive
What must be established for stack v dowden?
Was the property intended to be shared equally?
Was property in sole ownerships intended to be as a joint ownership
What is the difference between constructive and resulting trust?
Resulting trust- direct contribution
Constructive trust- parties agreed to proportionate share in property
What is a resulting trust?
Direct contributions made to the purchase price of the property- 10% paid in 10% return. Bull v bull
What is a constructive trust?
Parties have shown intention to share the property.
What are the two requirements under constructive trusts, Lloyds bank v rosset?
Common intention property would be shared
Person seeking a share has relied on the common intention to their own detriment.
What other factors will stack v dowden also consider?
Discussion at the time
Purpose property was bought for
How finances were arranged
Nature of the parties relationship
What does S12 TLATA stipulate
Any party who holds an interest in the land must be considered on the change to the land.
What does S14 TLATA stipulate
The court has the power to declare what shares are held within the property
What does S15 TLATA stipulate
The court must consider the following when valuing shares
- intention of the parties
- purpose for the home
- welfare of any children
- interest of mortgage lenders
As a cohabitant does the father have automatic responsibility to the child? Name statue
Under children act 1989 the father does not have responsibilities unless named on the birth certificate
