Implied Trusts and the Family Home



Implied Trusts and The Family Home

Introduction

The family home, as the name suggests, lies somewhere on the intersection of property law and family law. This triggers an issue for the law makers: should the decisions to be made according to property law or family law? Since there have been minimal legislative interventions, the cases regarding family home have been analyzed by general law of property. The law affecting cohabiting couples is complex, contradictory and chaotic.

The law of implied trust of the home has proven to be one of the most important areas of law, that enlarge the gap between trust and property law. This law has proven to be of major significance over last few decades, with increasing situations where couples have moved to buy a home, and do not have any marital or civil partnership. There have been many cases in last 3 decades, where courts have encountered a situation where two persons have shared a home for a long period of time, and have been solved differently. It seems that there is no clear guiding principle in English Law applicable to such cases and “family home” has no meaning in English Law. It has not been very common for cohabitating couples to express their concerns in courts, regarding family home, due to which fails to comply with the section 53 (1)(b) of the Law of Property Act of 1925.

English law follows the principle of separating the property. It means that it deals the family members as strangers to each other in terms of using or acquiring any property. Marriage or cohabitation can not confer joint-property rights. There are many difficulties and legal complications in dealing with such situations. However, the courts have sought leniency in this regard. This has occurred in two ways; firstly, the courts have done some modifications in order to accommodate different needs of family members. The other approach, judges have used is that they have extend the basis on which people can claim family property, while securing the interest of third parties. However, there has been many discrepancies regarding the use of procedure regarding family home and judges have arrived on different/contradictory results. For example, a detailed statutory code governs the occupation of home; there are criteria for sale of the family home in case of bankruptcy. The courts have extensive provision to distribute the property on divorce and the same is under consideration for unmarried

Property Laws for Cohabiting Couples: A Critical Evaluation

Generally, cohabitants have some legal protection to enjoy in several areas, they do not have as many responsibilities and rights as married couples have. Man y cohabitants enter in a formal agreement of cohabitation, which guides the consequences after the relationship ends. However, it is very unclear that how the courts or legal systems deal with the situation. Keeping in view, the consequences of the situation, Law Commission recommended a financial relief for the cohabiting partners, in case of break up or separation based ...