scholarly journals Beneficial Ownership of the Family Home

2021 ◽  
Vol 32 (1) ◽  
pp. 151-173
Author(s):  
Mark Pawlowski ◽  
James Brown

The aim of this article is to review and critically analyse the English law relating to common intention constructive trusts in the context of the family home. In particular, it seeks to show how the English courts have addressed the question of establishing and quantifying the parties’ beneficial shares in both sole and joint ownership cases. The writers also seek to compare the English approach with the way in which such questions have been answered by the Australian courts. The primary purpose of this comparison is to consider what lessons (if any) can be learnt from the Australian model.

2012 ◽  
Vol 22 (1) ◽  
pp. 35-49
Author(s):  
Sarah Greer ◽  
Mark Pawlowski

To what extent, following the decisions in Stack v Dowden and Abbott v Abbott, may a claimant acquire beneficial ownership in the family home under a constructive trust relying purely on domestic contributions as homemaker?  The writers examine this question against the background of single and joint ownership cases and suggest that, in the light of recent judicial pronouncements, the criteria for establishing a common intention constructive trust enunciated by Lord Bridge in Lloyds Bank plc v Rosset may have been eroded so as to allow for a much broader inquiry of the claimant’s contributions to support a constructive trust.  In particular, it is submitted that this may allow the English courts to consider the same factors for both establishing and quantifying the claimant’s interest in the property which, in turn, may pave the way for a closer assimilation between single and joint ownership cases in this field.


Legal Studies ◽  
2021 ◽  
pp. 1-19
Author(s):  
Man Yip

Abstract This paper examines why Singapore law has not followed English law in the area of beneficial ownership of family property. It points out that the landmark cases in the two jurisdictions are underpinned by different family paradigms.The English landmark cases are based on the unmarried cohabitants paradigm and the legal rules that have emerged from these cases are aimed at, whether successfully or not, ensuring a fair division of the family home upon the breakdown of these relationships. In contrast, the Singapore seminal judgments are underlaid by contests between children over their parents’ property which raised questions as to the parties’ true intentions and the legal techniques to determine that. In the main, this paper argues that the legal rules that emerge in a society are shaped by the conditions of that society: these rules are purpose-built to resolve the specific types of disputes that come through the judicial system, which are in turn moulded by the distinctive conditions of that society. The discussion also shows that whilst the courts in the two jurisdictions differ in the legal techniques which they apply to determine these disputes, they do not appear to differ greatly in their understanding of human interactions and complex family relationships.


2021 ◽  
pp. 435-480
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield

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 explores the acquisition question in relation to the family home through an analysis of the doctrines of resulting and constructive trusts. The chapter explains the different initial presumptions drawn in cases of joint and sole legal ownership and the particular approach that has been adopted in the case of a home purchased ‘in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage’. The chapter considers how the ‘common intention’ of parties in relation to the common intention constructive trust is determined differently in relation to the primary acquisition question (in cases of sole legal ownership) and the secondary question of the quantification of beneficial shares (applicable in cases of joint and sole beneficial ownership). The chapter addresses the contentious issue of the extent to which the courts’ broader approach to common intention in relation to quantification may be carried over to the primary acquisition question. The chapter considers statutory rights to occupy and current Law Commission proposals for reform.


Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield

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 explores the acquisition question in relation to the family home through an analysis of the doctrines of resulting and constructive trusts. The chapter explains the different initial presumptions drawn in cases of joint and sole legal ownership and the particular approach that has been adopted in the case of a home purchased ‘in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage’. The chapter considers how the ‘common intention’ of parties in relation to the common intention constructive trust is determined differently in relation to the primary acquisition question (in cases of sole legal ownership) and the secondary question of the quantification of beneficial shares (applicable in cases of joint and sole beneficial ownership). The chapter addresses the contentious issue of the extent to which the courts’ broader approach to common intention in relation to quantification may be carried over to the primary acquisition question. is joint and equal beneficial ownership. The chapter considers statutory rights to occupy and current Law Commission proposals for reform.


Author(s):  
Robert Pearce ◽  
Warren Barr

This chapter provides some examples of the use of trust in everyday life. The way in which trusts underpin much of the modern law of property is often unnoticed or under-appreciated. For instance, the family home is, in most cases, held on trust. While trusts first emerged in an entirely different social environment, they have proved extremely adaptable to modern family and commercial contexts, and they play a key role in the modern law of charities. Those who invest in a pension or a unit trust are likely to find that the underlying assets behind their investment are held under a trust. Persons with considerable wealth may utilize trusts to help in tax planning.


2007 ◽  
Vol 35 (1) ◽  
pp. 1-19 ◽  
Author(s):  
Mary Jean Corbett

WITH AMPLE SELECTIONS FROM contemporary family letters, the sixth chapter of E. M. Forster's Marianne Thornton: A Domestic Biography (1956), entitled “Deceased Wife's Sister,” narrates the story of “a fantastic mishap” that the members of his grandparents' generation “could only regard as tragic” (189). After the death of his first wife, Harriet, in 1840, Henry Thornton decided to take another – Harriet's younger sister Emily – and at once, “the situation became very awkward” (190). Having lived with Henry all her life, his sister Marianne “behaved civilly” (190) to Emily Dealtry, who “had continued to frequent the house” after Harriet's demise, helping “to look after her nephew and her nieces” (189), but another Thornton sister, Isabella, “refused to see her anywhere” (190). Spending “vast sums” without success “in trying to get the 1850 bill passed” (192) – a bill that would have repealed the 1835 statute invalidating all such future marriages – Henry closed up the family home and took Emily, her mother, and his own daughters abroad to solemnize the marriage in one of the many European states where these unions were legal. Appalled, the rest of his nine siblings, most of them married, worked to maintain a united front. Upon Henry and Emily's return to England, they prevailed upon the susceptible Marianne to stay away from Battersea Rise, the family home: even “a single visit” from her, Forster's clerical grandfather insisted, “will be magnified into countenance and approval by a leading member of the family: and every artifice be employed to draw others in …. In the mind of society the family may become mixed with the offenders: and real injury be done without any resultant benefit” (214). By this act on the part of “the Master, the Inheritor, who had betrayed his trust,” Forster characterizes the other members of the family as “excluded for ever” from their ancestral home “unless they bent the knee to immorality, which was unthinkable” (205). Marking his own distance from Thornton family values, Forster comments, “to the moralist, so much discomfort will seem appropriate. To the amoralist it will offer yet another example of the cruelty and stupidity of the English law in matters of sex” (210).


Land Law ◽  
2018 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield

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 explores the acquisition question in relation to the family home through an analysis of the doctrines of resulting and constructive trusts. The chapter explains the different initial presumptions drawn in cases of joint and sole legal ownership and the particular approach that has been adopted in the case of a home purchased ‘in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage’. The chapter considers how the ‘common intention’ of parties in relation to the common intention constructive trust is determined differently in relation to the primary acquisition question (in cases of sole legal ownership) and the secondary question of the quantification of beneficial shares (applicable in cases of joint and sole beneficial ownership). The chapter addresses the contentious issue of the extent to which the courts’ broader approach to common intention in relation to quantification may be carried over to the primary acquisition question. The chapter considers statutory rights to occupy and current Law Commission proposals for reform.


Author(s):  
Mark P. Thompson ◽  
Martin George

Co-ownership of land can involve a number of quite different relationships. One type of relationship, which has caused the most anxiety, is that between cohabiting couples in an intimate relationship. Much of the case law dealing with the acquisition of interests in land has arisen in the context of disputes over ownership of the family home. In the case of the matrimonial home, such disputes became possible only in 1882. This chapter, which explores legal issues concerning co-ownership of matrimonial property in England, focusing on acquisition of interests in the matrimonial home, first discusses the creation of co-ownership before turning to express declarations of ownership. It also considers resulting, implied, and constructive trusts as well as joint ownership of the legal title, sole ownership of the legal title, contributions and resulting trusts, purchase money resulting from trusts, reform of the law on co-ownership, and proposed legislation by the Law Commission.


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