Cohabitaion Flashcards

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1
Q

Advising Cohabitees:

A

Solicitors may need to advise on the following:
▪Property ownership and occupation of the home.
▪Maintenance – parties and children.
▪ Children Act 1989.
▪Personal protection from domestic abuse.

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2
Q

The Home - Legal ownership by both cohabitees

A
  • Legal title – joint names or sole name?
  • Check the title deeds
  • Beneficial interest? – Joint tenancy
    – Tenants in common
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3
Q

Joint Tenancy

A
  • Parties equally own all of the equity.

Advice to client:
* Sever the joint tenancy?
* Alter will?

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4
Q

Tenants in common

A
  • Parties own defined shares in the equity.
  • Is there a trust deed?
  • If not, interest determined by contributions to the property
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5
Q

No declaration of beneficial interest? Case Law

A
  • Stack v Dowden [2007] UKHL 17

Starting point:
- 1 legal owner = 100% equity
- Joint legal owners = 50% equity each
Court considers:
- In which way did the parties intend their beneficial interest to be different from their legal interest?
- Whole course of dealing

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6
Q

No declaration of beneficial interest? Case Law

A
  • Jones v Kernott [2011] UKSC 53
  • Joint legal owners – joint tenants in equity
  • Rebut presumption using evidence of “common intention”
  • Conduct and dealings between parties?
  • What is fair considering the whole course of dealings?
  • Financial contributions and other factors.
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7
Q

The Home - Legal ownership by one party

A
  • A beneficial interest in the property?
  • Trusts
  • EXPRESS
  • RESULTING
  • CONSTRUCTIVE
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8
Q

Express Trust

A
  • Written trust instrument
  • S.53(1) LPA 1925
  • In writing
  • Signed by the parties.
  • Conclusive evidence of the trust and beneficial interests
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9
Q

Resulting trust

A
  • Direct contributions to purchase price - Evidence?
  • Court infers common intention to share
  • Since Stack v Dowden, resulting trusts are rarely applicable in cohabitation cases involving the family home
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10
Q

Constructive Trusts

A
  • Express / Inferred common intention to share property

and

  • Action by non-legal owner in reliance.
  • Direct contributions e.g to mortgage
  • Indirect contributions e.g. improvements to property.

OXLEY V HISCOCK [2004] EWCA Civ 546

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11
Q

Practical considerations

A

Establish the trust

Right of Occupation? s.12 (1) TLATA 1996

Application for declaration of interest in the property

s.14 TLATA 1996
s. 15 TLTA 1996

Register interest in property

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12
Q

Occupation of the home- no Legal or beneficial interest

A
  • Contractual licence
    – Need elements of a contract – May be terminable by notice
  • Equitable estoppel
    – Assurance of right to occupy – Reliance on that assurance – Detriment suffered as result
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13
Q

Financial Provisions - between the parties

A
  • No obligation to maintain each other
  • Can agree voluntary payments in separation agreement enforceable as a contract
  • If no agreement apply for state benefits
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14
Q

Financial Provision - for children

A
  • Absolute obligation to maintain children
  • Application to Child Maintenance Service
  • Application to court pursuant to s.15 and schedule 1 Children Act 1989
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15
Q

schedule 1 / s15 children act1989

A
  • Orders the court can make:
    – Lump sums;
    – Periodical payments; and/or – Property adjustment.
  • Court has regard to factors in schedule 1 paragraph 4
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16
Q

Schedule 1 / s15 CA1989

A

Re P (Child: Financial Provision) [2003] FLR 865
* Court’s approach as to what is reasonable?
- Decide the home for the child.
- Decide if a lump sum is required.
- Decide maintenance allowance and
possibly a carer’s allowance.
Meet genuine “needs” of the child generously

17
Q

CA 1989

A
  • Unmarried mothers have parental responsibility (‘PR’)
  • Unmarried fathers do not have automatic PR – apply for PR under s. 4 Children Act 1989
  • PRorlackofitdoesnotaffectobligationto maintain a child financially.
18
Q

Personal Protection -Family Law Act 1996

A
  • Non-molestation order
  • Occupation orders

– s36 - applicant not entitled to occupy – s38 - neither party entitled to occupy

  • Non-molestation orders - s. 42
  • The police – criminal proceedings