Cohabitaion Flashcards
Advising Cohabitees:
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.
The Home - Legal ownership by both cohabitees
- Legal title – joint names or sole name?
- Check the title deeds
- Beneficial interest? – Joint tenancy
– Tenants in common
Joint Tenancy
- Parties equally own all of the equity.
Advice to client:
* Sever the joint tenancy?
* Alter will?
Tenants in common
- Parties own defined shares in the equity.
- Is there a trust deed?
- If not, interest determined by contributions to the property
No declaration of beneficial interest? Case Law
- 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
No declaration of beneficial interest? Case Law
- 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.
The Home - Legal ownership by one party
- A beneficial interest in the property?
- Trusts
- EXPRESS
- RESULTING
- CONSTRUCTIVE
Express Trust
- Written trust instrument
- S.53(1) LPA 1925
- In writing
- Signed by the parties.
- Conclusive evidence of the trust and beneficial interests
Resulting trust
- 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
Constructive Trusts
- 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
Practical considerations
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
Occupation of the home- no Legal or beneficial interest
- 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
Financial Provisions - between the parties
- No obligation to maintain each other
- Can agree voluntary payments in separation agreement enforceable as a contract
- If no agreement apply for state benefits
Financial Provision - for children
- Absolute obligation to maintain children
- Application to Child Maintenance Service
- Application to court pursuant to s.15 and schedule 1 Children Act 1989
schedule 1 / s15 children act1989
- Orders the court can make:
– Lump sums;
– Periodical payments; and/or – Property adjustment. - Court has regard to factors in schedule 1 paragraph 4
