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Topic: Law LLB -Family Law Research Paper

Q1
When a couple are cohabitating and the property is in one name only, the partner who doesn’t own the home may not have an automatic right to occupy the house in cases if the family home breaks down .In order to establish Petra rights in respect of the property we must look at the two components of ownership of property. These are legal ownership or beneficial interest. We know Calvin is the legal owner of the house, because he has deceived Petra into thinking she is in joint ownership of the property and is also led to believe the mortgage is in both their names, when really everything is in his name and nothing in Petra’s. What she may be entitled to, however is an interest in the property, which is known as a beneficial interest. A beneficial interest is a right to the benefit of the property. These benefits may be such as a share of the rent or a share of proceeds of the sale when the property is sold, may be financial, or may be quite practical like having the right to live in the property. Beneficial owners are not registered on the deeds which are kept at the land registry, therefore being difficult to establish such interest. S53(2) of the Law and Property Act 1925 states “even if there is no express trust, This section does not affect the creation or operation of resulting, implied or constructive trusts.” This means that Petra can establish a beneficial interest based on 1 of 3 ways, resulting trust, constructive trust and proprietary estopell. We can see that Petra does not have a resulting trust as she did not contribute to the purchase price of the property. We must now see if Petra satisfies the constructive trust. In order to establish her rights in the property we must establish her beneficial interest by way of constructive trust. The leading case in this area of law is Lloyds bank v Rossett 1991. In order to establish this we must look at the two part process. Firstly there must be a common intention to share ownership and in addition based on the leading case, Petra has relied on the common intention to her detriment. If we take the first component of the Rossett test we must show a common intention to share ownership. This can be established 2 ways the first way is an express common intention this is an informal agreement but an express agreement and can be arrangement or understanding between the parties. Petra does not have an informal agreement with Calvin, therefore not satisfying this part of the test. The second type is something that is inferred based on the “conduct” we know from Lloyds bank v Rossett 1991 this means that there does not need to be a express discussion or an express common intention on how you’re going to share ownership, but you may have done something, or carried out actions which will be seen as relevant conduct linked to the acquisition and interest in the property whereby the court can infer common intention to share ownership. Petra’s conduct of paying most of the household expenses which is what enabled Calvin to afford the mortgage. This conduct should be enough to infer that there should be common intention to share, and Petra would not have carried out this conduct unless she felt that there was intention for both to share the property. What we must see is if indirect financial contribution satisfies this part of the test. In Le Foe v Le Foe , the wife had not made any such “direct” contributions (direct contributions often meaning to the mortgage or payment of property) However, Nicholas Mostyn QC noted that “the family economy depended for its function on B’s earnings. It was an arbitrary allocation of responsibility that A paid the mortgage, service charge and outgoings, whereas B paid for day-to-day domestic expenditure.” This “indirect” contribution was held to be sufficient detriment to furnish a beneficial interest pursuant to a constructive trust. The judge found support in the words of Lord Diplock in Gissing v Gissing “It may be no more than a matter of convenience which spouse pays particular household accounts, particularly when both are earning, and if the wife goes out to work and devotes part of her earnings or uses her private income to meet joint expenses of the household which would otherwise be met by the husband, so as to enable him to pay the mortgage instalments out of his moneys this would be consistent with and might be corroborative of an original common intention that she should share in the beneficial interest in the matrimonial home and that her payments of other household expenses were intended by both spouses to be treated as including a contribution by the wife to the purchase price of the matrimonial home if we can establish that Petra has a constructive trust, then you can go on to there being a beneficial interest and we know that it means she is entitled to a share in the property, however unlike an express trust, based on s53(1) un like an resulting trust a constructive trust doesn’t leave you with determination in terms of quantification of the share Petra will get.
The family law act 1996, aims to protect those suffering from domestic violence and offers remedies to those who wish to apply. We can see that Calvin is violent towards Petra. After an attack on Petra which leaves her with a black eye she leaves the house fearing for her safety. In order, for Petra to have a safe return to the family home although she does not believe that Calvin will be able to control his violent behaviour towards her there are Too her advantage 2 types’ orders, which the court use, which we know from Grubb v Grubb these are non-molestation orders, and occupation orders. When wanting to move back to the family home, when you believe it to be unsafe. A non-molestation order, prevents the perpetrator from pestering, harassing and molesting the victim, however it does not deal with the issue of the occupation of the family home. An occupation order on the other hand, regulates the occupation of the property. These orders are granted in very serious situations. These orders, give the victim a right to enter and remain in the home and effectively remove the respondent from the home. Petra may be able to get an occupation order, in order to get a safe return to the house. In order to apply for an occupation order there are 3 requirements set out by the court. The first requirement is that the applicant must have legal interest in the land. We know that Petra has an inferred common intention in the property therefore having a beneficial interest in the family home, meaning she satisfies this criteria. The second requirement is that the property has to have previously been the Family home, and was intended to be their home. We know prior to the domestic violence, sustained by Calvin that the home as both their family home and they both intended to live there in the future. Finally, the parties must “have had an intimate physical relationship of significant duration”. Petra and Calvin are cohabiting and have had an intimate personal relationship with one another therefore satisfying all 3 components. When making an application under the Family Law Act for an occupation order the courts will consider what they call the balance of harm test. The courts are made to balance the harm that is suffered by the applicant if the order is not made against that of the responded if the order is made. If, in the absence of the order, there is a chance the applicant will suffer significant harm, the order has to be made unless it’s proven that the harm suffered by a respondent would be greater if that order had been made. As listed in s33, when debating whether or not to grant the order of occupation the courts have regard to any financial needs of the party, the conduct of the parties and housing needs of the parties. The courts use, what is often referred to as the balance of harm test, sets out the court’s duty to balance the harm caused to the applicant, the respondent and any relevant children, if the order was or wasn’t made. In accordance with Section 33(7), the court must make an order if: “…It appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order…is not made’. There are however exceptions to this test. This is the case particularly when it appears that the respondent or any relevant child is likely to suffer significant harm if the order is made; or the harm likely to be suffered by the respondent or the child is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not mad. We can see that it I likely that Petra will suffer significant harm if she returns back to the house without an order, because Calvin is very violent towards Petra this is illustrated with the most recent attack, her black eye. However, if the courts still believe that Petra does not fulfil the significant harm test then they will look at the application s33 (6) which are general factors an order may be made.

Q2
Family Courts can end a marriage in two ways – by a decree absolute of divorce, which ends a valid marriage, or by a decree of nullity, which finds that the marriage was not valid in the first place. Karine and Dashas marriage is a valid marriage therefore Dasha can end the marriage by getting a divorce. Before Karine and Dashas will be granted a divorce they must be able to show that the grounds under the Matrimonial Causes Act 1973 have been satisfied. In order for the divorce to go through there must be a fault in the marriage after 1 year of being together. The court hearing a petition will not hold the “marriage has broken down irretrievably” (which is the only ground for divorce) unless the petitioner(Dasha) satisfies the court for the following (a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; (c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted; (e)that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”). In our case we can see that Karine has been have a sexual relationship with john, with no regard to the marriage with Dasha. As such, it is evident that because of this the parties cannot be reasonably expected to live with each other as it is illustrated in the case of Hadjimilitis (Tsavliris) v Tsavliris (2002). This has also been exemplified in the case of Bradley v Bradley (1973) [4] where it was stated that once the parties can establish that the marriage has irretrievably broken down, the reasonable expectation of the petitioner remaining with the respondent must then be taken into consideration. Therefore the best way to Dasha could end the marriage is from a divorce.
Pre-nuptial agreements are not strictly yet legally binding or enforceable in the UK court In the UK court, the courts give significant weightage to the pre-nuptial agreements based on the content of the agreement and financial obligations of the parties to the agreement. If the agreement is fair, signed with precaution and drawn up with correct consideration then the courts are likely to uphold such pre-nuptial agreement. There is no specific legislation about prenuptial agreements, so their status has been determined by case law – most notably in the landmark Supreme Court case of Radmacher v Granatino . In order for the prenuptial agreement to be binding in court the three factors that the court will look at whether or not, A The agreement must be freely entered into;, B The parties must have a full appreciation of the implications of the agreement; and C It must not be unfair to hold the parties to their agreement in the circumstances prevailing. The first thing the courts will look at is if Dasha freely entered into the Pre-nuptial agreement, what this means is to find out whether or not they got legal independent advise. We know from the material facts that Dasha is a lawyer, therefore did not think to need any legal advice, due to her own legal knowledge. This therefore satisfies the fact that the agreement was freely entered into by Dasha. Once this is satisfied the courts will then see if the parties must have had a full appreciation of the implications of the agreement. It is important that there is an exchange of financial disclosure before the prenuptial agreement is signed so that each party is aware of the extent of the claims they may potentially be giving up. “Assets of the parties and their financial worth is a significant aspect for the validity of the agreement” as said in Radmacher V Grantino we can see that when the divorce proceeding were commencing it was then disclosed that Karines Assets were worth in excess of 30 million. It is clear that Karine concealed her financial worth and mislead Dasha to enter into the pre-nuptial agreement. The last requirement the courts will look at is of fairness, and we can see that it would be unfair to hold Dasha at 1 million, when her ex-partner was worth 30 million. Therefore meaning the courts will most likely infer that Karine made concealment while entering into pre-nuptial agreement with Dasha, hence the court will most probably decide in favour of Dasha and will enhance the benefits provided to her in the divorce settlement

Type of service: Rewriting
Type of assignment: Research Paper
Subject: Law
Pages/words: 11/3000
Number of sources: 30
Academic level: Undergraduate
Paper format: OSCOLA
Line spacing: Double
Language style: UK English

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