Family Home Flashcards
Common Law Marriage
Its a myth, abolished by the Marriage Act 1953
What is cohabitation becoming and mean?
living together as if married. increasing lifestyle choice, more likely to break up
what is the legislation for Same sex marriage?
Marriage(same sex couples) act 2013
what is the act for Civil partnership?
Civil partnership act 2014
what is the act for Marriage?
Matrimonial causes act 1973
what does S21 Matrimonial causes act 1973 do?
redistribute property powers available to the court
what does s53(1)(b) Law property act 1925 do?
Written declaration of trust
Pettit v Pettit 1970 case facts
Hilda held legal estate, paid for the house. Harold only £300 of improvements. Nothing for Harold.
Pankhania v Chandegra 2012
Joint names between C and nephew P. Tenants in common in equal shares. P didn’t pay for house. On appeal declaration of trust was conclusive so 50/50 each. Still the rule.
what did Lord Reid say in Pettit v Pettit?
Court merely declares existing property rights cannot change them.
what Solutions arise from Equity?
Resulting trusts, constructive trusts and proprietary estoppel.
what is Proprietary Estoppel in family home law?
D made representation to C that C has beneficial interest in the land. C relies on this and then acts to the detriment.
Pascoe v Turner 1979
” the house is yours and everything in it”. T spends £230 on the house. HELD- whole house to her.
Proprietary estoppel cases
southwell v blackburn 2014, burton v liden 2016
what is Resulting Trusts?
The parties have beneficial interests in proportion to their financial contribution.
Resulting Trust Cases
Pettit v Pettit 1970, Tinsley v Milligan 1993
how many types of Constructive Trusts in family home?
2 types common intention constructive trusts,
Stack v Dowden
D was main wage earner, lived together and 4 children together, legal estate held jointly. “whole course of dealing”. kept financial affairs rigidly separate didn’t intent joint tenancy. 65% her 35% him.
what happens in Sole name cases?
acquiring a beneficial interest, 2 types of common intention constructive trusts
what are the 2 types of common intention constructive trusts?
oral agreement, detrimental reliance
what comes under Oral agreement?
even a lie can be an oral agreement, if there is no oral agreement acting to ones detriment doesn’t secure a beneficial interest.
what is classed as Detrimental reliance?
Physical work on the house counts, looking after children and housekeeping doesn’t count as detrimental reliance
Eves v Eves 1975
Cohabitating couple with same surname, Agreement and understanding. told her name wouldn’t ve on the deeds as not 21 (this was a lie).
Tinsley v Milligan 1993
Lived in a house together, ran it as a business and rented out spare rooms. succeeded as resulting trusts.
Grant v Edwards 1986
House in E name, told G to wait until her divorce. name never put on the title but orally declared their intentions
what was the detriment in Eves v Eves?
physical work on the house. 1/4 of the house. used sledgehammer.
what is Direct Financial contribution in family home?
purchase price or mortgage. “extremely doubtful anything less will do”. common intention inferred from the evidence. no need to prove existence of oral agreement
Midland bank v cooke 1995
Husband had legal estate paid from savings and paid mortgage. bank refused to put wives name on. her contribution was half of the wedding present. held she had beneficial interest. she paid household bills, contribution to family, whole course of dealings taken into account. half beneficial interest
what happens in indirect financial contributions or non financial contribution?
not allowed unless there is an oral agreement. older cases state its acceptable (Gissing v gissing, Burns v burns).
what is Joint name?
more common, legal estate in both the couples names, only issue is the size of shares. if in joint names the couple intend to share the beneficial interest.
what comes under whole course of dealing?
paragraph 69- advice or discussions when bought, who paid financial arrangements, provide home for children characters or personalities.
Jones v Kernott 2012
house in joint names in equal shares. accepted it was held in equal shares. after separated J paid for everything, K wanted his half. no evidence to displace the presumption of equal shares of that common intention had changed. 90/10 split in J favour.
oxley v hiscock
if common intention cannot be inferred from evidence, look at the whole course of dealing and impute a common intention. award fair shares.
Single Name case law
type 1- use lloyds to prove a share.
type 2- use stack to decide size of shares
Law commission- sharing homes
2002 report, couples married and unmarried etc. introduce civil partnerships, problems in existing law. make written declarations of trusts. courts more generous when acquiring an interest
Capehorn v harris
C had legal estate, ran business. H paid her rent per week. no oral agreement to have a share in the farm so no claim it in.
presume equal shares only if joint names- case?
Thompson v hurst
Thompson v hurst
H bought her council house, T contributed when he could, single name case. separate finances T didn’t contribute much. 90/10 split.
Law commission cohabitation 2007
just on cohabitation, implemented in scotland. claim 3 years together or have children.
Cohabitation Rights Bill 2016
property adjustment orders- lump sum, periodical payments. regard to future financial prospects and welfare of the children.
Couple may opt out by writing,
Gow v grant
Gow sold flat to move in with Grant. Grant had to pay her the increase in value of the flat “economic disadvantage”. Lady hale stated- cohabitation is not difficult to prove, a remedy such as this is both practicable and fair.
pettit v pettit what came out of it
If written declaration of trust then no possibility of further legal disputes.
what is needed within proprietary estoppel (elements)
reliance, reliance and detriment.
do you have to have an oral agreement in proprietary estoppel
no
pettit v pettit resulting trust
share proportionste to the size of the contribution. not appropriate in family cases
