File(s) not publicly available
A Matter of Trust: The Allocation of Rights in the Family Home
journal contribution
posted on 2023-06-08, 00:01 authored by Craig Lind, Anne BarlowThe current law of resulting and constructive trusts and proprietary estoppel is acknowledged to provide uncertain and often unsatisfactory remedies to disputes concerning the allocation of property rights in the family home. This article reviews these inadequacies, particularly as they affect the growing numbers of cohabitants, and puts forward radical proposals for reform. It is argued that the special nature of the family home - where the parties'relationship is based on `trust and collaboration¿ rather than commercial principles - requires reform which takes account of the broader contributions of both parties to the home and to the family in allocating property rights. The law should strive to treat all family homes in a consistent way, provide greater certainty of outcome, and yet do justice between the parties. A system of modified community property is therefore proposed. Broadly, this will provide a sliding scale of allocation of property rights over time for non-owner partners and a presumption of enhancement of the interest of the primary carer of children of the relationship. However, contracting out should be permitted; and a discretion to adjust the presumptive rights retained by the court where `manifest injustice¿ is demonstrated.
History
Publication status
- Published
Journal
Legal StudiesISSN
0261-3875Publisher
Legal StudiesIssue
4Volume
19Page range
468-488Pages
20.0ISBN
0261-3875Department affiliated with
- Law Publications
Full text available
- No
Peer reviewed?
- Yes
Legacy Posted Date
2012-02-06Usage metrics
Categories
No categories selectedKeywords
Licence
Exports
RefWorks
BibTeX
Ref. manager
Endnote
DataCite
NLM
DC