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Family Property Notes

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Family Property The Ownership of Family Property

Aims of the law o Law in this area needs to pursue three aims:
? 1. The law should produce as high a degree of certainty as possible
? 2. The law should reflect the wishes and expectations of most couples
? 3. It should be practical and easy to apply How does the law actually work? - Personal Property

General Principles o Income belongs to the person who earned it o Personal property is presumed to belong to the person whose money was used to buy it, though this presumption is rebuttable o Ownership of property can be transferred from one person to another if there is an effective delivery of the property with evidence it is intended as a gift o The act of marriage, engagement or cohabitation itself does not change the ownership of property

Jointly used bank accounts o Normally, a pooling of assets will indicate joint ownership. The key question is: "what is the purpose for which the fund is held?"
? Jones v Maynard [1956]: o So the focus is on the intentions of the party to the fund o Any property bought from it is jointly owned if the property was purchased for the parties' joint use
? But if it was bought for one of the parties it seems likely that it will be regarded as belonging to that party
? Re Bishop [1965]:

Housekeeping and maintenance allowance o S.1 Married Woman's Property Act 1964:
? If any question arises as to the right of the husband or wife to money derived from any allowance made by the husband for the expenses of the matrimonial home

The money or property shall, in the absence of any agreement between them to the contrary, o Be treated as belonging to the husband and wife in equal shares. o Herring: Doesn't apply the other way, but the courts would probably work it on the basis of the parties' intentions.

Gifts from one person to the other o Any gift from one to the other where gift clearly intended will lead to ownership by the receiver
? However, if no evidence

Gift from H to W will be treated as gift under presumption of advancement

Gift from W to H will be treated as H holding property on trust for W

Gifts to partners from third parties o Ownership depends on the donor's intentions
? Midland Bank v Cooke [1995]: A gift was given by W's parents to the couple on their wedding day for them to buy a house together.

Waite LJ:

o Intention of donor third party can be inferred from the circumstances o Here, gift to both because given so could buy house together.
? Therefore, in equal shares.

Express declarations of trust o Rowe v Prance: M bought a boat and wrote to his lover, W, detailing the various things he wished to do to her "on our boat".
? Held

This was a declaration of trust on the part of M of the boat o To be held in equal shares for both M and W. o W was therefore entitled to a half-share.

Problems o Herring: The Law Commission has characterised the existing rules as arbitrary, uncertain and unfair
? There is too much emphasis on who purchased a particular piece of property, which may be a matter of chance.
? And there is uncertainty over when an express trust will be found - possibly attached to comments like "our boat"
? By contrast, there may be couples whose general lifestyle demonstrates that they wish to share everything

But if there are not statements to this effect o Then they may find themselves in difficulty in proving co-ownership. How does the law work? - Ownership of the Family Home

Legal Ownership o This is a particularly heated areas, as homes have great monetary and emotional significance
? And where the couple are not married, the courts have no powers to transfer assets from one party to another
? Therefore, since it can only declare who actually owns the house, this will be highly important should the couple separate. o If land is registered, the legal owner can be determined by finding out who is registered as the owner of land o If the land is not registered, the person listed in the conveyance per s.52(1) LPA 1925 is the legal owner, as no land can otherwise be transferred legally.

Equitable ownership o Express trusts
? S.53(1)(b) LPA 1925 states that a declaration of trust in respect of land must be manifested and proved in writing signed by the settlor.

This means that an oral statement from the owner that they wish to hold the land on trust for someone else would not be sufficient for an express trust of land.
? Per Goodman v Gallant, unless there is fraud or mistake, if the conveyance sets out the equitable shares there should be

Then the court will not need to consider the question further.

A conveyance into joint names with nothing further leads to a rebuttable presumption of equal shares per Stack v Dowden

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