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Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

15. Family homes: Postscript  

In this chapter, there is a recognition that the intervention of equity in the family home represents a pragmatic response to a real problem, but it is not a perfect solution. It considers some of a number of grounds of critique of the current approach, including attempts at legislative reform to provide a solution. It can be criticized on a number of grounds, quite apart from the issue as to whether it constitutes a usurpation of a legislative function. There is also a consideration of whether the approach we have now has moved away from traditional assertion of property principles to a sense of redistributive justice more familiar to family lawyers.

Chapter

Cover Hayes & Williams' Family Law

3. Protection from domestic abuse and occupation of the family home  

This chapter considers the civil law remedies which are designed to protect a victim from domestic abuse. The two primary protective orders under Part IV of the Family Law Act (FLA) 1996 are the non-molestation order and the occupation order which can be applied for and obtained in conjunction with each other, or separately. The chapter discusses the fact that the occupation order can also be used to regulate occupation of the family home in non-violent situations when a dispute arises between family members about who is entitled to occupy the home, and on what basis.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

11. The family home in context  

This chapter starts by outlining some of the changes in society that have driven the development of the law on disputes regarding the family home. When a family is living happily together, there are unlikely to be disputes about the ownership of the family home. However, where the relationship fails, or one of the parties dies, the division of assets—including the family home—can be a deeply divisive issue. Where a couple are married, their dispute can often be resolved through the divorce legislation. Even then, the chapter shows how equity may have a part to play.

Chapter

Cover Land Law

6. Interests in the Family Home  

For many people, whether or not they enjoy an interest in the family home is fundamental to their sense of security, stability, and even their sense of self. However, a person may find themselves in a position where they are neither the registered legal owner of property nor do they enjoy an equitable interest under an express trust of land. This chapter examines how a person may acquire an interest in the family home through operation of the law of implied trusts: constructive and resulting trusts. It focuses on non-married, non-civilly partnered, cohabiting couples, or family members otherwise coming together to purchase property as a home. For these people, no legislation exists that gives courts jurisdiction to declare and adjust property interests. In this situation, the courts turn to the law of trusts to determine rights in the home, as this chapter explores.

Chapter

Cover Textbook on Land Law

18. Trusts of the family home  

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter deals with trusts of the family home. It explains how cohabitants, spouses, and civil partners may acquire rights to share in a family home owned by the other partner (sole name cases) and compares these to the joint name cases discussed in Chapter 17; how shares in a family home are quantified in sole name and joint-name cases; and the consequences where partners’ intentions about ownership change over time. The law is illustrated by reference to 11 Trant Way, which is held in the sole name of Mark Mould and occupied both by himself and his wife, Sally Mould.

Chapter

Cover Textbook on Land Law

21. Special rights in relation to the family home  

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter brings together some matters about the family home, and provides additional information about certain statutory rights which members of a family may have in respect of their homes, contrasting the rights of married couples and civil partners with the more limited rights of cohabitants. In conclusion, the chapter outlines past proposals for reform of the law relating to cohabitants’ rights in the family home. It illustrates the issues considered by reference to 11 Trant Way (occupied by Mr and Mrs Mould), 12 Trant Way (occupied by Mildred Mumps and Henry Newton) and 2 Trant Way (occupied by Barbara Bell and her father, Bob).

Chapter

Cover Family Law

5. Property Division on the Breakdown of Non-Matrimonial Relationships  

Warren Barr

The family home is the key property asset that most family members will own in their lifetimes. However, many people living together in a home do not give any real thought to whether the property is owned between them, or what would happen if they separated. This chapter explores the reasons why cohabitants do not often think through their entitlements to the property, and why the law has been slow to provide redress to them. It considers the rules applicable to the application of trusts and proprietary estoppel to aid cohabitants, as well as critiques them. It also examines the practical impact of the remedies provided by outlining what happens when property is to be sold. Finally, it considers the many attempts at law reform and why they have, to date, failed to reach the statute books.

Chapter

Cover Textbook on Land Law

21. Special rights in relation to the family home  

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter brings together some matters about the family home, and provides additional information about certain statutory rights which members of a family may have in respect of their homes, contrasting the rights of married couples and civil partners with the more limited rights of cohabitants. In conclusion, the chapter outlines proposals for reform of the law relating to cohabitants’ rights in the family home.

Chapter

Cover The Law of Trusts

17. Constructive trusts  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on constructive trusts, which are trusts that arise by operation of law. It identifies the variety of circumstances in which a constructive trust may arise, and discusses two important examples of constructive trusts: the vendor-purchaser constructive trust and the common intention constructive trust. More broadly, the chapter considers the role of the common intention constructive trust, equitable accounting, and the proprietary estoppel in determining interests under informal arrangements concerning family property.

Chapter

Cover Concentrate Questions and Answers Family Law

6. Family Property  

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter focuses on family property, both real and personal, the difference between legal and beneficial ownership of real property, and ownership of personal property in bank accounts. The rights arising from cohabitation are also discussed and compared to rights arising from marriage. The first question is a problem question concerning an unmarried couple who have separated, whilst the second is an essay question on property registered in joint names.

Chapter

Cover Family Law

7. Property and Finances When Non-Formalized Relationships End  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on the resolution of property and financial disputes that may arise between family members who are not spouses or civil partners and so who cannot use the statutory remedies discussed in chapter 6. Instead, parties rely largely on the general law of property, trusts, and contract to provide solutions. This chapter examines those areas of law, and the few statutory provisions that apply between these parties, before considering the prospects for reform.

Chapter

Cover Family Law

7. Property and Finances When Non-Formalized Relationships End  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on the resolution of property and financial disputes that may arise between family members who are not spouses or civil partners and so who cannot use the statutory remedies discussed in chapter 6. Instead, parties rely largely on the general law of property, trusts, and contract to provide solutions. This chapter examines those areas of law, and the few statutory provisions that apply between these parties, before considering the prospects for reform.

Chapter

Cover Hayes & Williams' Family Law

Property disputes when non-formalised relationships breakdown  

This chapter explores how the family finances are dealt with following the breakup between cohabitants in non-formal relationships. In particular, it considers property law disputes between cohabitants on relationship breakdown and the application of the law of trusts to determine the resolution of such disputes. As these are principles of general application which have not been designed specifically to deal with the financial consequences of relationship breakdown between cohabitants, the chapter highlights how they are generally regarded as inadequate to resolve family property disputes, producing unfair outcomes in certain situations.

Book

Cover An Introduction to the Law of Trusts
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. An Introduction to the Law of Trusts provides an introduction to trusts law, aiming to present a conceptual framework to aid understanding of this challenging area of the law. The text, which is the third edition, also identifies and discusses many analytical perspectives, encouraging a deeper understanding of the issues at hand. It offers treatment of specific areas, in particular remedial constructive trusts and trusts of family homes. Revised to take into account the Charities Act 2006, judicial developments through case law, and recent academic work in this area, this text provides an insightful introduction to the law of trusts.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

13. The evolution of rights in the family home  

This chapter shows how the laws governing the interests in the family home have developed. It first discusses the deserted wife’s equity, which was one of the first attempts to provide an answer to a dispute about the family home. Next, the chapter considers cases regarding proprietary interests in the home, some of which later built up to the present law. It also returns to the topic of resulting trusts, showing how limitations in resulting trust analysis led to the use of common intention constructive trust principles when dealing with ownership of the family home. This form of constructive trust has the advantage of greater flexibility than resulting trusts with the ability to resolve issues about ownership both at the time of acquisition of the family home and later.

Chapter

Cover Textbook on Land Law

18. Resulting and constructive trusts  

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter deals with resulting and constructive trusts of the family home. It explains how cohabitants, spouses, and civil partners may acquire rights to share in a family home owned by the other partner (sole name cases); how shares in a family home are quantified in sole name and joint-name cases; and how partners’ intentions about ownership may change. Stack v Dowden and Jones v Kernott, together with later decisions, are considered in detail.

Chapter

Cover Essential Cases: Equity & Trusts

Lloyds Bank Plc v Rosset [1991] 1 AC 107, House of Lords  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Lloyds Bank Plc v Rosset [1991] 1 AC 107, House of Lords. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Stack v Dowden [2007] UKHL 17, House of Lords  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Stack v Dowden [2007] UKHL 17, House of Lords. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Jones v Kernott [2011] UKSC 53, Supreme Court  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Jones v Kernott [2011] UKSC 53, Supreme Court. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover An Introduction to the Law of Trusts

18. Constructive Trusts 3  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter continues the discussion of situations in which a constructive trust occurs in English law. It focuses on constructive trusts that arise on one of two bases: a concern to protect someone who will otherwise have been irretrievably prejudiced by relying on another's word; and the implications of family relationships. It also considers the duties that apply to trustees of constructive and resulting trusts. The discussions cover transfers subject to an undertaking; reliance-based rules; family homes; and proprietary estoppel.