kazzasingh's version from 2018-05-10 19:21

Departing from joint ownership

Question Answer
Re PHouse of Lords HELD: for the purposes of the HRA 1998 treating cohabitants differently from married couples did amount to discrimination, although that could be justified in some cases.
Gomez v SpainA woman who separated from her cohabitant of 18 years complained that her inability to make the financial claims that a wife could make against her husband on divorce infringed her convention rights. The Commission HELD: any difference in treatment was justifiable by the need to protect the traditional family. She had chosen not to take up the advantages of marriage and therefore the discrimination was proportionate.
Van der Heijden v NetherlandsDifferences in the law of evidence as it related to married and cohabiting couples were justified as marriage conferred a 'special status' and gave rise to 'social, personal and legal consequences' that meant differences in treatment could be justified. The implication of this might be that some differences in treatment between married and unmarried couples will be unlawful discrimination under the ECHR and others will not. It may be, for example, that parental rights should not differ as between married and unmarried parents, but the rights they have between themselves can.
Sutton v Mishcon de Reya [2003]S was a male prostitute who entered into a sadomasochistic relationship with Staal, a wealthy Swedish businessman. S instructed the defendant solicitors to draw up a cohabitation contract. HELD: Hart J held that a property contract between two people who had a sexual relationship and cohabited could be valid.
Jones v Maynard [1951]Any balance in a joint account is owned 50:50 for cohabitants. However, the downside to this is that one cohabitee has right the to take out all the funds from the account and use them (unless the account is frozen). If you do not make an express declaration of the shares, the law will assume that you intended to share the property 50:50.
Stack v DowdenA cohabiting couple bought a house and had 4 children. Ms D bought this house (she bought it with her own money). She sold this first house and part of the proceeds of this sale went to buy a new family home. No declaration of trust was included. There was a small financial contribution from Mr Stack. The couple had kept their financial lives very separate (separate accounts). They then broke up. The starting point is that we assume that they had equal joint ownership of the house (50:50). Ms D wanted to displace the presumption of joint ownership. They had both looked after the house, both looked after the children. Whilst Ms D had put up most of the money for the purchase price, Mr S had improved (both) the properties and also contributed a small amount to the purchase of the second property. HELD: Ms D had displaced the presumption. She got 65% of the house.
Barnes v Phillips [2015]The house was bought in 1996 and conveyed into joint names. There was a declaration that they were both going to hold it 50:50. But then the couple ran into financial difficulties. Male partner moved out. HELD: intentions may change over time. She was given 85% ownership and he was given 15%. There was a departure from 50:50.

Departing from single legal ownership

Question Answer
Oxley v Hiscock [2004]The property was bought my Mr H in his own name. The purchase was funded by the sale of Ms O's house (50% of the purchase price), Mr H's savings (25%) and a mortgage (25%). Mr H has previously contributed to the price of Ms O's house. HELD: 60% ownership to Mr H and 40% ownership to Ms O.

What sort of evidence can be introduced to rebut presumptions of ownership?

Question Answer
Lloyd's Bank v RossetYou need to prove discussions leading to an agreement (direct evidence of unwritten agreement). HELD: It needs to be improvement, not day-to-day maintenance. Painting, decorating and managing builders was not considered enough to show the requisite common intention.
Lightfoot v Lightfoot-Brown [2005]Direct financial contributions --> even though a certain amount of money was paid towards a property, no share was granted to the C (as there was no common intention).
Le Foe v Le FoeIndirect financial contributions --> house was owned in the husband's name but the wife paid for day-to-day expenditure. Husband paid for the mortgage. HELD: existence of agreement to share the house differently.
Eaves v EavesMs E wheeling a lump hammer was evidence of an intention to share the house.
James v ThomasUnpaid work in your partner's business. She hadn't contributed directly to the finances of the house. All the household expenses came out of Mr T's account. They later went into partnership and put the account into joint names and paid for everything out of the business. HELD: this was not enough to show a difference of intention in property ownership.
Morris v MorrisFemale partner worked in a farm business (unpaid). HELD: entitled to a share in the business but not the family home.
Burns v BurnsFemale partner gave up her job to have children. She returned to work and used her income to pay for household expenses. HELD: not enough evidence to show a common intention to share the house. The male partner retained the full beneficial interest. (Highlights the vulnerability of cohabitants compared to married couples - who would be treated more equally in a similar situation).

Once the presumption is rebutted, how do you decide shares? (Quantification)

Question Answer
Stack v DowdenYou should look at all the conduct of the parties in relation to their property to decide what shares were intended.
Jones v KernottIf there is no indication, but a clear intention to share differently to legal title, the quantification of shares can be imputed on the basis of what is fair in the circumstances. (Closer to married couples under s25 --> redistribution).
Waggott v Waggott [2018]The wife’s appeal, launched on the basis that she was entitled to share the husband’s post-separation income, was dismissed.